484 



THE FARMER'S MAGAZINE. 



Rome's evidence, it appearing to be so vacillating and un- 

 certain, and aUo that of the three intermediate witnesses. 

 If they arrived at the amount, that must be ascertained 

 from the evidence of Mr. Smith. Mr. Smith, however, wes 

 an inexperienced valuer, and had only made one previous 

 valuation, and was not thoroughly disinterested, being a 

 friend of the plaintiff, and hailing suffered himself from 

 damage. It would have been more satisfactory had Mr. 

 Smith told the jury why he did not ascertain the entire 

 amount of the produce of the moat meadow ; he might have 

 easily measured the quantity which did come from it, and 

 applying that to the case in question, he might have given 

 a proximate idea of the quantity which should have come 

 from that area, and thus he would have been able to have 

 told them the precise loss sustained by the plaintiff. As to 

 the damage done to the wheat, Mr. Smith had not stated 

 that the farm was kept in a clean way. Much would depend 

 on that, as well as on the season ; and in arriving at the 

 amount of damage done to the wheat, he (Mr. May hew) 

 would be able to show that there were hundreds of rat-holes 

 on the farm, and that persons had seen ears of wheat lying 

 in all directions, from the rats, as well as that Mr. Rome 

 had full permission to kill the rabbits in 1859. Why he 

 had not done so no satisfactory explauation had been given. 



Mr. Pope said there was no doubt that in the lease the 

 game was reserved, and that though no case was found 

 bearing directly on that point, it was assumed on all bauds 

 that for excessive preservation of game plaintiff might re- 

 cover. He had no authority except the one named by Mr. 

 Mayhew, as to a rabbit-warren. Some three or four years 

 ago there was an action by a farmer in Northumberland, 

 who recovered excessive damages ; but taking Lord Mans- 

 field's dictum as the law, yet in the present case there 

 were two grounds of action — a trespass committed by the 

 setting of traps, and the damage doi>e to the crops. Putting 

 it in the light that the increase of the game was an artificial 

 one, the defendants might be brought within the terms of 

 Lord Mansfield's dictum. 



His Honour said the question of the stocking|of the 

 game might be submitted to the jury. 



Mr. Mayhew submitted that the action should have been 

 against the lessors of the game. 



His Honour said the subject of game was beginning to 

 be of considerable interest. The lease did not give any 

 right to set traps for any other purpose than for the taking 

 of game. The question was, whether there was evidence 

 as to the placing of traps on the farm, or whether there 

 was damage resulting from it, and whether the rabbits were 

 turned out to increase. 



Mr. Pope understood his Honour to withdraw from the 

 case the whole amount of damage as to the game naturally 

 propagated, and to confine the case to the rabbits turned 

 out. 



His Honour said there were three questions: — 1, as to 

 the damage done by the rabbits turned on the land or on 

 the neighbouring plantation ; 2, the birds turned on the 

 land ; and 3, the traps, and the damage done by them. In 

 the two latter items, he thought only nominal damages 

 could be assessed. 



Mr. Thomas Dodds was then called for the defence. He 

 deposed : I am a land agent at Chorley. I am agent for 

 the Fazackerley estates. On behalf of the trustees, I en- 

 tered into an agreement for game with the three defendants, 

 I agreeing to let, and they agreeing to all the rights to pre- 

 serve the game, &c., on the estate. The agixement was for 

 four years. Mr. Rome's farm is a portion of the property 

 comprised in the agreement. [Agreement produced : it 

 stipulated that the defendants should have a gamekeeper, 

 and that in case of the rabbits becoming at any time so 

 numerous as to be destructive to the agricultural crops 

 growing upon the estate, permission should be given to the 

 tenants of the farms to take, kill, and destroy such game on 

 their respective farms.] 1 told the plaintiff that he might 

 kill the rabbits. I knew the farm in 1856-7-8-9. I was 

 frequently upon it, on my own business. If I had been 

 satisfied that there was a large increase of game I would 

 have given Mr. Rome at first a written authority. Mr. Rome 

 once said something to me about rats. There was a day's 

 rat hunt, and it was a poor day's sport, for we only turned 

 up three rats all day. [Mr. Pope : Then the thousand rat- 

 holes lloas^ed of only produced three rats !] — By Mr. Pope : 



I gave Mr. Rome a written authority in 1860. I did satisfy 

 myself then as to the increase of game. 



James Blackledge, one of the defendants, was then ex- 

 amined: I am a gamekeeper. I have been on the estate 

 five years next June. I remember an occasion when Mr. 

 Dewhurstwas present. The rabbits were taken to his field, 

 let out of the hamper, and shot dead as they ran. We then 

 carried them to my house. I have not turned down any 

 rabbits at any time. The traps were not set on Mr. Rome's 

 land at all. They were set for vermin, -with which the place 

 abounded, The vermin chiefly consisted of stoats, weasels, 

 rats, and cats (Laughter). — By Mr. Pope: I only had a 

 day's shooting out of the hamper once. There were plenty 

 of rabbits in 1859. I got some eggs, and brought ofi' some 

 young birds, but never served a rabbit out at all. We have 

 caught many a cat in the traps. I have shot many a hun- 

 dred rabbits. I shot the most in 3857. — His Honour : Was 

 there anything unusual about the rabbits in 1859? Com- 

 plaint was made in 1859 about them. — By Mr. Mayhew : lu 

 1858 I killed as many rabbits as in 1859. — By his Honour: 

 The rabbits were more numerous in 1859 than in any other 

 year.— By [Mr. Pope: I got fifteen pheasants' eggs, and 

 thirteen partridges' eggs in one season. 



Mr. Pope rose to reply. He said he confessed he felt sur- 

 prised that his friend's case for the defence should terminate 

 at thst point, for it left much of his own (Mr. Pope's) case 

 unanswered. He had called witnesses who had testified to 

 things which Mr. Mayhew might have contradicted if he 

 could, especially as they bore on the point now for adjudi- 

 cation. He (Mr. Pope) vould address himself to the facts 

 on which the jury had to adjudicate. The Judge would 

 tell them that so far as the natural increase of the game was 

 concerned, the defendants were not responsible for damage 

 done ; but that if they (the jury) were to find evidence to 

 lead tliem to conclude that instead of leaving the game to 

 its increase, the defendants had stocked it and increased it 

 artificially, then they would find damages to the amount of 

 injury so caused. The real question, then, was one of fact, 

 and one which Mr. Mayhew miglit have contradicted if he 

 had been able and chosen so to do; he had, hiiwever, simply 

 contented himself by calling the gamekeeper, who was the 

 most interested witness it was possible to have called, and 

 he asked the jury, on that man's unsupported testimony, to 

 discredit what the witnesses for the plaintiff had said about 

 the damage done to the farm. It had been proved — and it 

 was not so much as sought to be contradicted — that when 

 Mr. Rothwell left the estate, and the defendants took it, 

 the game had been reduced to the lowest jiossible limits, 

 and tliat afterwards it had remarkably increased. The jury 

 would have, therefore, to consider whether the defendants 

 had stocked the game, and whether it would be possible for 

 the game so to have increased by natural propagation in one 

 year as to have done the injury to the crops, to the extent 

 which had been proved. It had been proved — and it was a 

 main point — by the man Fowler that he sold the rabbits. 

 Those rabbits, however, it should be noted, were not the 

 same rabbits as 'hose spoken of by Blackledge. They were 

 sold in April, 1858. What was proved was that one of the 

 defendants was buying rabbits early in 1858, and that 

 defendants and their gamekeeper were turning out rabbits 

 late in the same year. When, therefore, it was found that 

 that was the case, and that the defendants were giving more 

 for those rabbits which were with young, and that the 

 gamekeeper admitted that they stocked the farm with other 

 sort of game, as birds, and that in 1859 the rabbits had 

 mysteriously increased beyond all calculation, was it an un- 

 reasonable supposition that there must have been in that 

 period more occasions than one in which rabbits had been 

 turned on to the estate ? If Mr. Whittle really did not buy 

 the rabbits, why was he not placed in the box to contradict 

 such a statement? He was admitted to have purchased in 

 April, 1858, rabbits in young, and paying a larger sum for 

 them. Why was that? Were rabbits better to shoot when 

 in young ? No ; but they would be all the more valuable for 

 turning down into an estate for the purpose of breeding. 

 Was not that uncontradicted fact sufficient to carry the 

 plaintifi"s case upon the question of fact ? He (Mr. Pope) 

 was astonished that the defendants, who were gentlemen of 

 position and property, should have preferred to come to that 

 court to ask the jury to say that they were not responsible, ra- 

 ther than to fairly meet the case and say, " Well, damago 



