THE FARMER'S MAGAZINE. 



4S3 



I was out "beating" for Mr. Sewell. the Whililes, Mr. 

 Potter, and another. 1 know Mr. Rome's farm at Gil li- 

 brand. I remember going to the keeper's house in the 

 latter end of the j-ear, and seein-? a hamper there, a yard 

 long aad two feet broad. 1 sat down on it and heard a 

 noise inside. I moved the cover to one side and saw a 

 number of living rabbits. Blackledge, \\'illiam Whittle, 

 and a man named Bateson took it to the wood. Bateson 

 was a keeper. The rabbits were in the skip when they 

 took it away. They were away ten minutes, and it was 

 empty when they returned. They went into the plantation 

 adjoining the farm. There were more rabbits in 1859 than 

 in 1858. Ihave seen rabbits in the crops, and I have seen 

 that the crops were damaged. By !Mr. Mayhew : Mr. 

 Sewell was not present when the hamper of rabbits was 

 taken away. I heard no shooting, I did not see them 

 bring any rabbits back; if they did they must have been in 

 their pockets. 



John Home, examined : I work for Mr. Rome, and have 

 worked for him for three years. There was the most game 

 on the farm in 1859. The chief damage was in the three 

 lawns of wheat. The rabbits' droppinfjs were. in the hay. 

 Cattle will starve before they will eat hay wh'ch contains 

 rabbits' dung. I have seen traps set, which would catch 

 cats or dogs. I have seen no one set them, but I have seen 

 Blackledge carrying them. — By Mr. Mayhew : They would 

 take rats, of which there were many. — By Mr. Pope : I 

 remember one day when Mr. Rome's little girl and her 

 governess came into the field, with a little dog, and it 

 started six pheasants. That was when I was cutting the 

 wheat. 



Mr. William Adam Smith, farmer, Duxburj', said : I 

 know Ml". Rome's farm, and I have seen rabbits and phea- 

 sants on it. On .July I3th, 1859, 1 inspected it in reference 

 to damage it had received from game. On Aus^ust 10th 1 

 was looking at the growing crops, and found considerable 

 damage had been done to them by game. I have suffered 

 in a greater degree from the same thing, and recovered 

 compensation. The moat meadow was considerably injured 

 by rabbits, as was evident from the numerous roads they 

 had made, the great quantity of dung lying in the piece, and 

 the many bare spots in the field where they had been feeding. 

 Three-fourths of the field had been manured with 600 single- 

 horse loads of compost, and 17 tons of lime. The grass on 

 the manured portion was inferior to that on the unmanured 

 part, and that is accounted for from the feeding of the rab- 

 bits thereon, that grass being sweeter and more palatable 

 to them than the other. In an ordinary season the meadow 

 would have produced from 30 to 40 tons of hay. Probably 

 nine tons have been destroyed — value £5 IO3. perton. The 

 crop of wheat was thin. There were marks of cattle having 

 been there, and some few traces of rats on the eastern side, 

 considerable damage having been done to the western side. 

 Twelve windles of wheat have been destroyed — value £1 per 

 windle. This does not include what I calculated as damage 

 by rats. The further lawn was very much eaten by rabbits ; 

 four windles having been destroyed. The middle lawn had 

 a much better crop ; but still, two windles were injured by 

 rabbits. That is not so near the plantation as the other 

 lawn, but there were marks where the rabbits had been. 

 The near lawn suffered the most, the south-west and the 

 north sides being greatly injured ; half an acre was eaten 

 down, as well aa the mid furrows half up the field, and for a 

 breadth of four feet ; the total extent of damage was eight 

 windles — value £8. That lawn is almost sutrounded by the 

 plantation. Corn field No. 2 was in bad condition, and, even 

 making allowance for the deficiency of the cultivation, and 

 the fact that under ordinary circumstances the crop would 

 not have been good, 24 bushels,'worth £-1, were spoilt. As 

 to the clover and turnip crops, I made no estimate. The 

 damage had been done through the whole summer, and can- 

 not be accounted for by the supposition that the rats had 

 done it. Judging of the land from what I saw, the average 

 crop per acre, after a succession of turnips, should have 

 been from 30 to 40 bushels, i. e., if no rabbits had been 

 there. — By Mr. Mayhew : I was accompanied in the valua- 

 tion by Mr. Roston, who is not here. I have made a valua- 

 tion of damage done to agricultural crops once before — 

 several years ago. I found some damage done to the wheat 

 by rats. 



Mr. JIaviilw then rose to addreos the jury for the de- 

 fendant. He said he should ask his Honour, in directing 

 the jury, to say whether the plaintiff had a right of action 

 at all. The only case which he found which could bear on 

 the case, though it was remote, was one in Burroughs, 

 where there was a dictum by Lord Mansfield that if the 

 lord of a manor surcharged a common to such an extent by 

 placing rabbits upon it, as that the herbage of the common 

 should be totally eaten or destroyed, though the commoner 

 could not abate the evil, he bad a right of action. That was 

 as between persons having independent rights. But here 

 the plaintiff had no rights beyond those given to him by the 

 lease ; and, going back for an instant, to the exception, it 

 was remarkable that in the exception of the mines and other 

 things which the lessors reserved to themselves, a clause was 

 contained to the effect that if an}' damage should be thereby 

 occasioned, the lessee could have compensation ; but in the 

 reservation of game, the maxim Expressis unius exdusis est 

 allerius must be applied by his Honour. Not only in his 

 (Mr. Mayhew's) view was no action sustainable for damage 

 done by animals /era nature, but if damage had really 

 been recoverable, the lessee's remedy would be against his 

 own lessors, and not against those to whom the lessors had 

 given their licence to shoot or fish. What would be the 

 state of things if the lessee could proceed against the lessor? 

 First, if the lessee sustained damage, it was by his own want 

 of care, in not making it a term of the contract that the 

 damage should be compensated for, just as cunpensation 

 was stipulated for in other thin;is. What damage P 

 Damage by the game on the land. What game.^ and to 

 what extent!^ For if the lessee could recover for any 

 damage, he could recover for all damage, supposing that any 

 rabbits were kept and any injury had been sustained. (His 

 Honour: I don't understand that the defendants " kept" 

 rabbits at all.) Well, what were the facts.' Mr. Rome, 

 the plaintiff, became the tenant imder the lease in December, 

 185G, and shortly afterwards he entered into possession. 

 He stated that the game was reduced ; but when Messrs. 

 Whittle came it was greatly increased. Supposing, then, 

 that that increase had been by the natural fecundity of the 

 animals themselves, and not by any act of the defendants, it 

 was clear that no fault could be found against them on that 

 account, and though the claim overrode three year?, 

 1858-9-60, the two ends of that claim might easily be cut 

 oft'. No claim was presented as to 1860, and therefore only 

 the year 1859 had to be dealt with. If the game had in- 

 creased in 1859, it was clear that the damage might be then 

 caused ; but it could not be said that that increase was any- 

 thing but natural. It appeared that there was game on the 

 adjacent estate. Defendants were the lessees of the game 

 on 1,300 acres of land, of which Mr, Rome's farm was a 

 portion. Game passed from one portion of the estate to 

 another. The pheasant which was in one wood one day 

 would be in another on the following day. There was, in 

 fact, no property in them, except when killed and in a man's 

 possession. His Honour must have noticed how carefullj' 

 the plaintiff had worded his claim ; but he (Mr. Mayhew) 

 took leave to say that as the evidence stood, theie w-as 

 nothing to support the allegation made in that claim; there 

 was nothing to prove the stocking, placing, or keeping on 

 the farm .any of the things therein named. That there 

 wp'-e rabbits could not be denied, as also that there were 

 some pheasants. Of hares, however, nothing had been said, 

 and even of pheasants they had heard but little. He could 

 show that defendants were the tenants of the. game by an 

 agreement between the lessors and themselves, and that 

 they were entitled to all the rights reserved in the lease of 

 18.56 ; they had exercised those rights, as he was instructed, 

 with fairness and moderation, and had no desire to trespass, 

 or even to suft'er the game to increase to an improper ex- 

 tent. He did not find that in 1858 any complaint was made 

 to the defendants themselves, and in 1859 complaint was 

 only made to their keeper and Mr. Dodds. If the jury had 

 to adjust the quantum of damages, he (Mr. Mayhew) would 

 have to call witnesses, to go generally into the evidence for 

 the defence; and it would be for the jury to consider whe- 

 ther or not the plaintiff had established the amount of hia 

 claim. On that evidence they would have some considera- 

 ble difficulty in arriving at a conclusion as to the amount. 

 Though he did not say it offensively, they must discard Mr. 



