quiet in harness." Pleas-first, non assumpsit; second, that the horse " was quiet in harness"; concluding to the country.

The horse was sold by the defendant's son to the plaintiff on the 7th of May,

1834.

Evidence was given of the warranty, and that the horse was not quiet in harness; and it appeared, that, on the 30th of May, 1834, the plaintiff tendered back the horse to the defendant, as not being quiet in harness, and that the defendant refused to receive it. It was proved that the horse was, on the 30th of May, 1834, placed at livery at the Horse and Jockey Inn, at Reading, and remained there till Reading Fair, which was on the 25th of July, when it was sold.

The plaintiff sought to recover the difference in price between the sum of £31, 10s., paid by him to the defendant as the price of the horse, and the sum of £17, at which it was sold at Reading Fair; and also a sum of £6, 15s. 11d. paid for the keep of the horse at the Horse and Jockey Inn during the time it stood there.

Coleridge, J. (in summing up).—With respect to the [170] keep of the horse, I am of opinion, that, if a person has bought a horse with a warranty, which has been broken, and he tenders the horse to the seller, and the seller refuses to receive it back, the buyer is entitled to keep it a reasonable time till he can sell it, and for that time he may against the seller recover the expense of keeping it; but he must not keep it as long as he chooses. All that he is allowed to do is to keep it for a reasonable time till he can fairly sell it, and for that time he ought to be allowed for keeping it. If you think that keeping the horse from the 30th of May till the 25th of July was keeping it for a reasonable time, you ought to allow the sum of £6, 15s. 11d. which is claimed. If it was a good thing for the sale of the horse to keep it till Reading Fair, you will find your verdict for the amount claimed; but, if you think the horse ought to have been sold within a week or a fortnight, or some other short time, will deduct so much of the claim as goes beyond that time. Verdict for the plaintiff for the whole amount claimed.* Ludlow, Serjt., and Yates, for the plaintiff.

Jervis, and Carrington, for the defendant.

[Attornies-Sherwood, and Knight.]

March 9th, 1835.

REX v. WHEELER, ROBERT COWLEY, AND JOHN COWLEY.

you

(An indictment charged in the first count that A. and B. killed a sheep, with intent to steal one of its hind legs; and, in the second count, that C. received nine pounds' weight of mutton so stolen as aforesaid; and, in the third count, that C. received the mutton "of a certain evil-disposed person," scienter, &c. :-Held, that, on this form of indictment, all the three prisoners might be properly convicted.) [Referred to, R. v. Caspar, 1839, 9 C. & P. 289.]

66

The indictment charged, in the first count, that the prisoners, Wheeler and Robert Cowley, did feloniously [171] kill one sheep, of the goods and chattels of Henry Dean, with intent to steal one of the hind legs of the said sheep." The second count charged the prisoner, John Cowley, with receiving nine pounds' weight of mutton, part of the goods and chattels "so stolen as aforesaid," he well knowing it to be stolen. The third count charged, that the prisoner, John Cowley, received the nine pounds' weight of mutton from "a certain evil-disposed person," he then knowing that the mutton had been stolen by the said "evil-disposed person."

Coleridge, J.-I think that the second count cannot be supported, as it states the mutton to have been so stolen as aforesaid "; and there is no stealing mentioned, as the first count only imputes to the other prisoner an intention to steal. M'Lean, for the prosecution, referred to the third count, where it was stated that the mutton was stolen by some evil-disposed person.

Coleridge, J.-Upon that count two difficulties present themselves the first is, whether, if the principal felon be known, his name should not be stated; and, if not known, whether it should not be charged, that he is unknown.

Mr. Tomes, the clerk of the indictments, stated, that since the stat. 7 & 8 Geo. IV. c. 29, s. 54, it had been usual to frame a count against a receiver in this form (a).

Coleridge, J.-The other difficulty is this: this count is for receiving stolen goods; and it is joined not with another count against other persons for stealing anything, but with a count for killing with intent to steal; [172] which appears to me to be an offence quite distinct in its nature from that imputed to the prisoner, John Cowley. I shall not stop the case, but I will take care that the prisoner, John Cowley, has any advantage that can arise from the objection, if, upon consideration, I should think it well founded.

The jury found all the prisoners guilty.

M'Lean, for the prosecution.

[Attorney-Field.]

The two prisoners, Wheeler and Robert Cowley, were afterwards sentenced to be transported for life, and the prisoner, John Cowley, to be imprisoned and kept to hard labour for six calendar months-the last week in solitary confinement.

March 8th, 1835.

GORDON, ESQ. v. Cox, WIDOW.

(In trespass for taking carriage horses which the plaintiff had hired of the defendant to take him away from the defendant's inn, the defendant pleaded that the plaintiff refused to pay his bill for entertainment, and that the defendant did so to prevent the removal of the plaintiff's carriage. To this plea the plaintiff replied, that he had "tendered " the defendant £45; and the defendant rejoined, denying the tender. It was proved that the plaintiff put down the money, and offered it, if the defendant "would take it in full of the bill " :-Held, that this was not a valid tender, and that this evidence did not support the replication-Held, also, that on these pleadings the jury are not to consider the reasonableness of the defendant's bill.)

Trespass. The first count of the declaration was for false imprisonment; second count, that the plaintiff had hired certain horses to draw his carriage part of the way from Oxford to London, and that the defendant took away the horses. Pleas-first, to the whole declaration, Not guilty; second, to the second count, that the horses were the horses of the defendant, and that the plaintiff had not hired them (concluding to the country); third, to the second count, that the defendant was an innkeeper, [173] and that the plaintiff owed her a large sum of money for the lodging and entertainment of the plaintiff and his family, and for the standing of his carriage at the defendant's inn; and that the plaintiff refused to pay the said sum; and that, to prevent the removal of the plaintiff's carriage, the defendant removed the horses. Replication to the third plea, that after the debt was incurred, and before the removal of the horses, the plaintiff " tendered " to the plaintiff the sum of £46, 12s. 7d. Rejoinder, denying the tender.

It appeared that the plaintiff, who was a gentleman of fortune residing in the county of Somerset, had come with his wife and another lady to attend the installation of the Duke of Wellington as Chancellor of the University of Oxford, and that they had taken up their abode at the King's Arms Hotel at Oxford, which was kept by the defendant. The plaintiff and his party came to the hotel on the 9th of June, 1834, and left on the 14th of that month. It further appeared, that, on the 14th of June, the plaintiff ordered his bill, and desired that horses should be put to his carriage. The bill brought to him by the defendant's daughter amounted to £49, 19s. ld. (including a charge of £2, 8s. 7d. for servants); and the horses, which were post horses the property of the defendant, were brought out, and one of them placed by the side of the pole of the plaintiff's carriage. It further appeared, that the plaintiff complained that he was overcharged, and said he should make deductions from the bill, so as to reduce it to £46, 12s. 7d. The defendant's daughter refused to abate anything, and ordered the horses to be taken from the carriage, and replaced in the stable, which was accordingly done. It was proved by Mr. Woolley, the brother-in-law of the plaintiff, that the plaintiff put down on the table the sum of £46, 12s. 7d., and the defendant's daughter refused to take it; but in his cross-examination he said, Mr. Gordon offered the money, if Miss Cox would take it in full of the bill, and [174] give a receipt." It further appeared, that the plaintiff, for want of post horses, did not leave the defendant's hotel for five hours after this time, when Mr. Walsh, a solicitor, who was called in by the plaintiff, persuaded the defendant to deduct £3 from her bill, and to let the

plaintiff have horses, which she accordingly did. It was further proved, that the plaintiff had ordered a relay of horses at Tetsworth, which was used by another person, because the plaintiff did not arrive at Tetsworth at the time he had named, and that the plaintiff was delayed in consequence.

Ludlow, Serjt., for the defendant.-The tender relied on by the plaintiff is not good in point of law, as he required that the money should be taken in complete discharge of the bill, which is a condition which no debtor has a right to make at the time of a tender of a sum of money. With respect to the taking away of the post horses by the order of Miss Cox, I submit that no inn-keeper is bound to provide post horses for a guest, unless there has been a previous agreement to that effect, of which there is no evidence in the present case.

Coleridge, J. (in summing up).-The first question you will consider is, whether the plaintiff was either assaulted or imprisoned. The next question is, whether the plaintiff had hired the horses. And the defendant has also alleged, that the plaintiff was indebted to her, and had refused to pay her; to which the plaintiff has replied, that he tendered her a sum of money; and whether that sum of money has been tendered or not, will form the third question in this cause. It is clear that there was no assault, and there seems to have been no restraint on the person of the plaintiff, or of any of his party, so as to prevent them from going wherever they pleased. With respect to the hiring of the horses, you will say whether the horses being brought out in the [175] manner described, convinces you that there had been a previous hiring of them in the same way as at the other inns at which the plaintiff had bespoken horses. With respect to the question of tender, I should tell you that a party may do one of two things he may either resist a claim altogether, or tender a less sum; but if he take the latter course, he must not encumber his tender with the condition that the other party shall accept the money in full discharge of the debt, because that is putting the person who claims the money under the disadvantage of never being able to claim more, even if he is entitled to a larger sum. Now the effect of the evidence here is, that the sum offered by the plaintiff was offered in entire discharge of the bill; and that being so, it is not a valid tender (a).

The foreman of the jury.-My Lord, we wish to know if we are to consider the reasonableness of the defendant's bill?

Coleridge, J.-That point does not arise. The form of the pleadings is such as not to raise the question.

Verdict for the defendant.

Maule, and Tyrwhitt, for the plaintiff.

Ludlow, Serjt., and Walesby, for the defendant.

[Attornies-Williamson, and Robeson.]

[176] Worcester Assizes, before Mr. Justice Park.

March 12th, 1835.

REX v. SARAH SIMMONDS.

(A. was to be tried for felony at the assizes for the county of W., and B., a material witness for A., was committed to the W. city prison for further examination, on a charge of felony :-Held, that before the trial of A., the governor of the W. city prison ought to allow A.'s attorney to see B. in his presence.)

[S. C. 3 Nev. & M. M. C. 400.]

The prisoner was charged with receiving seven gold rings, knowing them to be stolen.

Watson, for the prisoner, moved for an order for Mr. Fryzer, the prisoner's attorney, to see a person who was committed to the prison of the city of Worcester for further examination, on a charge of felony, she being a material witness for the prisoner Sarah Simmonds. He moved this on an affidavit, which stated these facts, and that Mr. Fryzer had applied to the governor of the city prison, and also to one of the magistrates of the city.

Park, J.-The governor of the city prison ought to allow the prisoner's attorney to see the witness in his presence.

Mr. Griffiths, the governor of the city prison, stated, that he had offered that

(a) See the cases of Cheminant v. Thornton, ante, vol. ii. p. 50; and Peacock v. Dixon, id. p. 51.

but that the prisoner's attorney wished to see the witness apart, which he would not allow.

Park, J.-You acted most correctly.

Motion refused.

Whitmore, for the prosecution.

Watson, for the prisoner.

[Attornies-Gwinnell & Hughes, and Fryzer.]

[177] March 13th, 1835.

REX v. RIVERS.

(If a prisoner's examination before a magistrate conclude "taken and sworn before me," and under that be the magistrate's signature, it is not receivable in evidence; and the Judge will neither allow the magistrate's clerk to prove that in fact it was not sworn, nor will he receive parol evidence of what the prisoner said.)

[S. C. 3 Nev. & M. M. C. 400.]

Night poaching. The prisoners were charged on the stat. 9 Geo. IV. c. 69, s. 9, with poaching in the night-time (being armed), on the land of John Taylor, Esq.

It was proposed on the part of the prosecution, to give in evidence a statement made by the prisoner before the Rev. George Turberville, the committing magistrate, which had been reduced into writing. At the conclusion of the statement were written the words "taken and sworn before me"; and under those words was the signature of Mr. Turberville, the magistrate.

Park, J.-I cannot receive this; it appears to have been taken on oath.

F. V. Lee, for the prosecution, proposed to call Mr. Skey, the magistrate's clerk, to prove that the prisoner had in fact not been sworn.

Park, J.—I cannot allow Mr. Skey to contradict the writing of the magistrate. F. V. Lee proposed to give parol evidence of what the prisoner said before the magistrate; and cited the case of Rex v. Reed (a)1, which was a case of murder, in which the examination of the prisoner by the coroner was inadmissible on account of an irregularity, and Lord Chief Justice Tindal allowed the coroner to give parol evidence of what the prisoner said.

[178] Park, J.-I cannot receive parol evidence. I remember a case in which a heading of a deposition was used, and it stated that the prisoner was sworn. The written evidence was rejected; and parol evidence was offered, and that was rejected also. As I see that there is a writing, I cannot receive parol evidence.

Verdict-Not guilty (a)2.

F. V. Lee, for the prosecution.

[Attornies for the prosecution-Clark & Skey.]

March 12th, 1835.
REX v. CHARLES PRICE.

(A person who is employed by a lord of a manor as a watcher of his game preserves, is a person having authority to apprehend night poachers, and he need not have any written authority from the lord of the manor. Where a person is found night-poaching on the manor of A., by one of his watchers, and is pursued off the manor, and then on to it again, and there snaps his gun at the watcher, he is guilty of a capital offence, under the stat. 9 Geo. IV. c. 31, ss. 11 & 12.)

[S. C. 3 Nev. & M. M. C. 401.]

The prisoner was indicted under the stat. 9 Geo. IV, c. 31, ss. 11 and 12, for attempting to discharge loaded arms at Thomas Greaves, with intent to murder him. The indictment also contained the usual counts, laying an intent to disable, to do grievous bodily harm, &c.

(a)1 1 M. & M. 403. The report does not state what the irregularity in the written examination was. It has been suggested to us that it was, that the examination was not signed by the prisoner. See the case of Rex v. Pressly, ante, vol. vi. p. 183.

(a)2 See the case of Rex v. Bentley, ante, vol. vi. p. 148.

It appeared that the prosecutor, who was not a regularly appointed gamekeeper, was employed as a watcher to watch for poachers in the game preserves of the Earl of Coventry; and that, on the night of the 22nd of November, 1834, the prosecutor and another watcher found the prisoner and two other persons in a wood of Lord Coventry, called Cattacroft, situate in a manor belonging to his lordship; that they pursued the prisoners out of that wood into a field not within his lordship's manor, and of which his lordship was neither owner nor occupier; and that, being hard pursued, the prisoner returned back into Lord Coventry's Manor; and, being still pursued, he levelled his gun and snapped it at the prosecutor, so as to burst the copper cap of the gun and make a small flash. [179] The prisoner was immediately secured, and his gun was ascertained to be loaded with powder and shot.

Godson, for the prisoner, submitted that the prisoner ought to be acquitted on two grounds: first, that there was no sufficient proof that the prosecutor was such a servant of Lord Coventry as was authorized to apprehend persons who were out night-poaching; and, second, that, if the prosecutor had such authority, his authority ceased from the moment that the prisoner was out of Lord Coventry's manor; and that the fact that he was driven upon the manor again by the prosecutor and his party could make no difference, and would not give the prosecutor an authority to apprehend, if he had it not in the field into which the prisoner had run. He cited the case of Rex v. Addis (ante, vol. vi. p. 338).

C. Phillips, for the prosecution, cited the case of Capt. Moir, who was tried before Lord Tenterden, on the Home Circuit. In that case the person who was killed by Capt. Moir persisted in crossing his land where there was no path, and Capt. Moir went home to fetch his pistols, and, meeting the deceased, some angry words passed, and Capt. Moir shot the deceased, and killed him. Upon this evidence Lord Tenterden left it to the jury to say whether, at the time when Capt. Moir shot the deceased, he was in fear of the loss of his own life; and the jury, finding that he was not, Capt. Moir was convicted and executed.

F. V. Lee, on the same side. The witnesses have stated that this wood is in Lord Coventry's manor, and that they were Lord Coventry's servants.

Godson. In the case of Capt. Moir it appeared that [180] the prisoner went home to fetch his pistols, which is wholly different from the present case. I should submit that the prosecutor, when the prisoner got off the manor, ought to have stopped, whereas he followed the prisoner off Lord Coventry's manor. There is also no proof of any delegation of authority by Lord Coventry which authorized the prosecutor to apprehend the prisoner. The prosecutor had no public authority, and he is not a known officer. There is no writing produced; and, upon this evidence, it must be taken that the authority of the prosecutor was to watch the game, and not to apprehend poachers.

Park, J.—The inclination of my opinion is, that this case is not governed by that of Rex v. Moir; and I think that the case of Rex v. Addis does not apply. If the firing had taken place off the manor, I should not decide whether, if death had ensued, it would have been murder or manslaughter; but, as it occurred on the manor, I think it is the same as if the parties had never been off the manor. With respect to the authority to apprehend being in writing, I do not find any case that requires that it should be so. I shall, therefore, decide at present that the prosecutor had sufficient authority to apprehend trespassers who were there in the night to destroy the game. I will, however, confer with my learned Brother Coleridge, and reserve the case for the opinions of the Judges, if necessary.

Verdict-Guilty.

March 13th, 1835.

Park, J.-In this case two objections were taken by Mr. Godson, which I then overruled, and I am confirmed in my opinion by that of my learned Brother. It was first contended that it was not shewn that the prosecutor had sufficient authority to apprehend the prisoner; and, second, that, as the prisoner had escaped out of the manor, [181] and was pursued back again, the prosecutor had no right to apprehend. In support of the latter objection, the case of Rex v. Addis was cited. In that case it appeared that the prosecutor's servant, who was trying to apprehend the prisoner, had no authority whatever to apprehend, which was not so here; that is, therefore, unlike the present case. The case of Rex v. Ball (1 M. C. C. 330) is much nearer in point. In that case there was no written authority to apprehend,