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1833.

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

COCKAYNE

V.

HODGKISSON.

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 bad 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

HODGKISSON.

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 connected 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 78. 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 bim 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 Cockayne

abundance of passages which shew that it was a malicious HODGKISSON. and not a privileged communication.

V.

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 bond 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

1833.

COCKAYNE

HODGKISSON.

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 whether 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; indeed, the plaintiff is also entitled to a verdict, if you think that there had not been any direction given to the defendant 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.]

Rex v. CAPEWELL and PEGG. INDICTMENT on the stat. 9 Geo. 4, c. 69, s. 9, for A count in an night poaching. The first count of the indictment stated, night poaching that the prisoners, together with another person unknown, stated, that the

prisoners were being armed, entered together into a field called the Nine- in a field called

A., for the purteen Acres, in the night time, for the purpose of then and pose of then and there taking game. The second count was similar, except

there taking

game:–Held, that it stated the name of the occupier of this field instead that the prison

ers could not be of the name of the field itself. The third count stated, convicted on that

count, unless the

jury were satisfied that the prisoners had an intention of taking game in that particular field.

1833.

REX

v. 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.

Verdict-Guilty. Whateley, for the prosecution.

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(a) R. &M. C.C.R.15). In that that close or not they could not case the indictment charged that say. The defendant was convictthe prisoner entered into a certain ed, but the twelve Judges held, close, with intent then and there that the conviction was wrong; and to destroy game. It was left to that, inasmuch as the entry with the jury to say, whether the defen- intent to kill game was confined dant entered that particular close by the indictment to the close speintending to kill game there. The cified, it was therefore necessary jury found that the defendant was to prove the intent as to that close. in pursuit of game, but whether in

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