Q. B.] makes out that the footway was canal. TRIMMER V. WALSH AND ANOTHER. MELLOR, J.-Hardcastle's case, explaining as it does Barnes v. Ward, is the decision we must abide by, and I think that it was a right decision. Here no accident would have occurred if the person had kept to the line of the road. Persons, if they go out of the line of the road, must use the adjoining space with reference to its surrounding dangers. [Q. B. adjoining to the | the 22nd Oct. 1841, after reciting that due notice- Rule absolute for a nonsuit. TRIMMER v. WALSH AND ANOTHER. Waste land-Commutation of tithes—Inclosure— | 828 a. and 30 p. of which the plt.'s land is parcel, Liability of hop-grounds to the extraordinary charge under the 42nd section of 6 & 7 Will. 4, c. 71. A. was the owner of waste lands in a parish, the tithes of which were commuted in 1841, when the commissioner, by his award, found that these lands were not subject to tithes, and no ordinary rentcharge was apportioned by him in respect thereof, but they were included with other lands in the apportionment and schedule as follows:-" The Forest of Alice Holt, 2658a. 3r. 3p. ;" and under the heading, "Rentcharge payable to the vicar," there was left a blank. In 1853 there was passed an Inclosure Act, under which, in June 1857, the land in question was allotted to A. About the year 1855 the plt. began to cultivate this land as hop-ground, and had since then continued so to cultivate it: Held (per Cockburn, C.J., Blackburn and Mellor, JJ.), that the tithes on these lands had been commuted under the Tithe Commutation Act, and that the lands were subject to the extraordinary rentcharge imposed on hop-grounds by the 42nd section of the Tithe Commutation Act. Per Wightman, J., that there being no rentcharge payable, there could be no additional charge, and that therefore these lands were not so chargeable. This was an action of replevin, brought by the plt. for the alleged illegal seizure by the defts. of certain goods under distress for extraordinary rentcharge for hops in lieu of tithe under the circumstances hereinafter stated. The following case was stated for the opinion of the court, without pleadings: : The plt. was the owner and occupier of certain lands in the parish of Binstead, in the county of Southampton, hereinafter called the plt.'s land. The plt.'s land at the date of the award hereinafter mentioned was common or waste land, but has since been inclosed as hereinafter mentioned, and ever since the year 1855 has been cultivated by the plt. as hopgrounds. The deft. Walsh became, in the year 1854, and from thence hitherto hath continued to be and still is, the vicar of the said parish of Binstead, and as such claims to be entitled to an extraordinary rentcharge, payable in lieu of the tithes in respect of the said cultivation of the said plt.'s lands. In pursuance of such claim the deft. Walsh, by the deft. Williams, his bailiff, put in the said distress on the 25th March 1861, upon certain hop-poles on the plt.'s land, for 371. 48. 62d., being the amount payable on the 1st Oct. 1860 for such extraordinary rentcharge, if the plt.'s land was liable in respect thereof, ten days' notice in writing of the intention to make such distress having been first duly given by the deft. Walsh to the plt. on the 8th Nov. 1860. Such distress was duly replevied by the plt., and the question to be decided in this case is, whether the plt.'s land is liable to the extraordinary rentcharge for hops. were used as common or waste land; and that the said commissioner also found that all the lands of thesaid parish were subject to the payment of all manner of tithes in kind with the exception of 1607 a. and 24 p. therein particularly described, and being lands other than the said 828 a. and 30 p., of which the plt.'s land is parcel as aforesaid; and reciting that the said commissioner had estimated the clear annual value of the said tithes in the manner directed by the said Act of Parliament, and had also taken into account the rates and assessments paid in respect of such tithes during the seven years of average prescribed by the said Act, and that the vicar of the said parish for the time being was entitled to all the small tithes arising from all the lands of the said parish, subject to tithes except from the before-mentioned lands called the Nestham Tithery. The said commissioner did thereby award, amongst other things, that the annual sum of 2097, by way of ordinary rentcharge, subject to the provisions of the said Act, and to commence from the time therein mentioned, should be paid to the vicar of the said parish for the time being, instead of all the small tithes, other than tithe of hops, arising from all the lands of the said parish subject to tithes, except the said lands called the Neatham Tithery and the glebe; and that the further sum of 1s. 6d. per acre, and a proportionable sum for any quantity less than an acre, should be paid to the vicar of the said parish for the time being, in lieu of the small tithes, other than tithes of hops, of the appropriate glebe land of the said parish, or of such parts of the said glebe lands as might at any time not be in the occupation of the dean and chapter therein mentioned, or their successors for the time being; and the said commissioner thereby assigned that part of the said parish not within the Neatham Tithery to be a district within which the thereinunder-mentioned extraordinary charge upon hop-grounds should prevail, and did thereby further award that the lands therein, which were then or might be thereafter cultivated with hops, should be charged with and pay the additional sum of 11. per imperial acre by way of extraordinary rentcharge, and a proportionate sum for any quantity of land less than an acre, so long as they should be so cultivated. The plt.'s land is not within the Neatham Tithery. An apportionment of the sums by the said award. awarded to be paid by way of ordinary rentcharge in lieu of tithes amongst the several lands of the said parish was duly made by two valuers duly appointed. The apportionment commences as follows:-"Now, we, having been duly appointed valuers to apportion the total sum awarded to be paid by way of rentcharge in lieu of tithes amongst the several lands of the said parish of Binstead, do hereby apportion the rentcharge as follows:-Gross rentcharge payable to the titheowners in lieu of tithes for the parish of Binstead, in the county of Southampton, including 11s. Id. for The tithes payable in respect of the said parish vicarial tithes of glebe at 1s. 6d. per acre; 1261. for have been duly commuted under the Tithe Commuta-rectorial tithe of glebe, at 3s. per acre; and 1367. for tion Act, and by the award of an assistant tithe com- extraordinary charge on hops, at 1. per acre→→ missioner, dated 11th Oct. 1841, duly confirmed on 1243l. 9s. 4d., viz.. And then proceeds with the names of the landowners and occupiers, with the names and description of their lands and premises, their state of occupation and quantities in statute measure, and the amount of rentcharge apportioned upon the several lands, and to whom payable. And the said apportionment in like manner gives the names and description of the lands and premises in respect of which the rentcharge of 2091. was payable to the vicar, and also their state of occupation and quantities in statute measure, and the amount of rentcharge apportioned upon such lands, and to whom payable. Every piece of land, homestead, building, &c., of whatever denomination, liable to any portion of the said ordinary rentcharge of 209., is distinguished separately. No apportionment is made of the extraordinary rentcharge payable in respect of the said 136 acres of hopgrounds, nor are they again mentioned in the said apportionment except at the end of a summary of the tithes payable to the vicar Extraordinary charge on 136 acres of hops, at 11. per acre 209 11 1 136 0 0 A. R. P. payable to vicar. The Forest of Alice Holt...2658 3 3 No ordinary rentcharge, therefore, was payable, or has been paid in respect of the plt.'s land, or of the common or waste lands of which it formed part. The said extraordinary rentcharge of 1361. has from time to time varied and been paid according to the quantity of acres cultivated as hop-grounds. A certified copy of the said award and apportionment formed part of the special case. An inclosure of part of the said lands hereinbefore mentioned as the Forest of Alice Holt, including plt.'s land, took place in or about the year 1854, and the award made by the valuer appointed in the matter of that inclosure was confirmed on the 29th Jan. 1857. There is no mention of tithes in the inclosure award. Allotments were made by the said award to persons who brought in and proved their claims in the usual way, and the plt.'s land was allotted to no person who had no lands in Binstead parish, but who had land in an adjoining parish, and who established a claim to allotments in respect of such last-mentioned lands, by having exercised commonable rights upon and over the Binstead wastes. Some portion of the said waste lands was sold by the said commissioners to pay the expenses of the in-. closure. In or about the year 1855 the plt. laid out and commenced cultivating his said inclosure as hopground, and has ever since continued so to cultivate it. The deft. Walsh has for some time past claimed to be entitled to the said extraordinary rentcharge in respect of such cultivation. He had not tried to enforce payment thereof until the month of Nov. 1860, when he made a formal claim upon the plt. and others who had planted the said inclosed waste lands with hops, for payment of the extraordinary charge of 17. per acre, and on the 8th Nov. 1860 a further formal application was made by the said last-mentioned deft. for the said rentcharge, and as it was not paid the distress which is the subject of this action was taken by the deft. upon the plt.'s land for a sum of 371. 4s. 6 d., being at the rate of 17. per acre for land cultivated as hop-ground for a period of two years up the 1st Oct. then last past. The question for the opinion of the court was, whether under the circumstances stated the plt.'s land is liable to pay the said extraordinary tithe rentcharge for hops. If the court was of opinion in the affirmative, judgment was to be entered for the defts. for 371. 4s. 6d. If the court was of opinion in the negative, judgment was to be entered for the plt. for -1. The plt. contended: 1. That the plt.'s land is not subject to the extraordinary rentcharge for hops, inasmuch as it never was subject to the payment of any tithe or ordinary rentcharge, and was not included or dealt with in the tithe commutation. 2. That the fact of the plt.'s land having been allotted under the inclosure to the owner of land in another parish, and which was not titheable in Binstead parish, would operate as another reason for exempting the land in question from the charge now sought to be imposed upon it. The defts. contended: 1. That the plt.'s land is liable to pay to the deft. Walsh the extraordinary tithe rentcharge of 11. per acre when cultivated as hop-grounds. 2. That it is expressly found by the tithe commissioner in his award that the plt.'s land was liable to the payment of all manner of tithes in kind, and Q. B.] YOUNG AND OTHERS v. Macrae. [Q. B. after fixing the rentcharge for ordinary tithes the said | is no tithe it cannot be commuted, but that is not so. award charges the plt.'s land when cultivated with hops with the additional sum of 17. per acre by way of extraordinary charge. 3. That the fact of no portion of the ordinary rentcharge having been apportioned by the two valuers on the plt.'s land does not destroy its liability under the said award to pay the said extraordinary rentcharge when cultivated with hops. Coleridge, Q. C. (Garth with him), for the plts., referred to 6 & 7 Will. 4, c. 71, ss. 40, 42, 43 and 67 (Walker v. Bentley, 9 Hare, 629.) Mellish, Q. C. (J. J. Aston and F. M. White with him) for the deft. Coleridge, Q. C. was heard in reply. COCKBURN, C. J.-I am of opinion that our judgment should be for the defts. The case turns on the question whether the tithes on the lands of the plt. on which the additional rentcharge has been claimed have been commuted under the Tithe Commutation Act. I think they were. This was land which was waste land, and which has since been used for the cultivation of hops. Then there is the special provision for assessing hop-land and garden-ground. The Legislature made a provision applicable to the growers of hops that a portion of the coinmutation should be reduced. Then comes the provision of the 42nd section, dividing such charge into an ordinary and an extraordinary charge. The Legislature seems to have considered the titheable value of land very difficult to be arrived at when applied to the case of hops, as compared with land applied to the growth of other produce, and feeling that it would be a hardship to assume that land in hop cultivation would always be so cultivated, made a provision, that if there was a change of cultivation the charge should be reduced, and in carrying out their scheme for equitably charging all land, the plan of ordinary and extraordinary charges was introduced. Then comes the question whether this land comes within the second provision. The whole turns upon the word "commutation." I think the argument used by Mr. Coleridge is to confound the word "apportionment" with the word "commutation." In what sense are those words used in the Act? It seems to me in contradiction the one to the other. The charge was extinguished by the commutation of tithes; can it be said that the tithes have not been commuted when they have been extinguished? The true meaning of this is, that the land cultivated for the growth of hops shall now be liable to this extra charge. WIGHTMAN, J.-I differ in opinion with my Lord Chief Justice. The first question is whether this land is hop-ground. Provision is made for the charge when land is in ordinary culture, and then follows a provision to make a second charge when the land is converted into hop-grounds. It really seems to me to require that in order to bring the case within the section, there must be an amount of rentcharge payable; otherwise I do not know the meaning of an additional rentcharge. As the land in question paid nothing, there could be no additional charge pertaining to it. It seems to me that the Act does not in a case like the present make the land liable to the extra charge. I BLACKBURN, J.-I agree with my Lord Chief Justice that our judgment ought to be for the defts. agree that the whole turns on the 42nd section of the Act. The lands in question are in a district, and have been newly cultivated as hop-grounds. Are they iable to the extra charge? There had been no titheable produce on this land for time immemorial, and de facto no tithes had been paid, but the lands would not the less have been chargeable had there been any titheable produce. It occurs to me that it is impossible to say they were discharged; then can it be said these tithes were commuted? The vicar gets a rentcharge in lieu of tithe; it is said that if there I cannot agree with my brother Wightman and Mr. Coleridge, and in my mind the provisions of the Act show the objects and intentions of the Legislature. If it had been otherwise meant, it would have been otherwise expressed. It is then said that the expression "additional rent" shows that it must have been contemplated that some already existed. I do not think there is anything in that. He pays a sum, a sum in addition to nothing. MELLOR, J.-I agree with the Lord Chief Justice and my brother Blackburn, that defts. should have judg ment. The construction contended for by the plt. would lead to singular results. It is conceded by Mr. Coleridge that the titheability of this waste land was extinguished by virtue of the commutation, and yet it is said they were not commuted. I think if they were extinguished they were commuted. It is admitted also that if the smallest sum were apportioned they would be liable, but that cannot be so; it would lead to manifest injustice. I agree with the difference between apportionment and commutation explained by the Lord Chief Justice, and think this has reference entirely to the former and not to the latter. Judgment for defts. YOUNG AND OTHERS v. MACRAE. A declaration stated that the deft. falsely and maliciously composed and published divers false, scandalous and malicious libels of and concerning plts., as copartners, manufacturers and sellers, of and concerning them as in the way of their trade and business, divers of such libels being composed of a report in these words:" Professor Muspratt's Report.-I certify that I have tested the above oil, and that I find it a colourless and aromatic liquid, while Young's (the plt.'s) has a reddish brown tinge, is much thicker and has a more disagreeable odour than it; and further, that in burning the two oils, comparatively, in the ordinary one shilling lamp, I found the power of light produced by the American oil is equal to four and a quarter wax candles, whereas Young's, burned under the same conditions, yields a light only equal to nearly one candle (or 25 per cent. less)." And alleged special damage: Held, on demurrer, that the declaration showed no cause of action. The declaration stated, that before the committing of the grievances hereinafter mentioned, letters patent of her Majesty the Queen had been granted to the plt. James Young, whereby the exclusive manufacture, use and sale of an invention of a process for obtaining, by the distillation of bituminous coals under particular conditions, the substance known as paraffin, and also an oil containing paraffin, within England and Wales and the town of Berwick-upon-Tweed, the Channel Islands and the Isle of Man, and in her Majesty's colonies, and also in Scotland and Ireland, was secured to the plt. J. Young, and such others as he might agree with, for the term of fourteen years from the dates of the said letters patent, and a specification, fully describing the said invention, was duly enrolled as respectively in the said letters patent is directed. And whereas, afterwards and before the coinmitting of the said grievances, by an indenture dated the 22nd Oct. 1851, and made between the plt. J. Young of the first part, the plt. Edward Meldrum of the second part, and the plt. Edward William Binney of the third part, the said letters patent, and the privileges thereby conferred, were vested in the plt. J. Young in trust for himself and the other plts., and their respective executors and administrators, in the shares in the said indenture mentioned; and whereas afterwards, and Q. B.] YOUNG AND OTHERS v. MACRAE. [Q. B. induced to buy and did buy the said oil in the said libel mentioned instead thereof. Demurrer and joinder in demurrer. The plts. contended that the publications set forth in the declaration are actionable. And that they have a good cause of action in respect of the special damage shown to have been sustained in consequence of the publications. The deft. contended that there is nothing in the declaration which amounts to a libel. Milward (Gates with him) in support of the demurrer.-No right of action is here shown; it merely amounts to this, that deft. says his oil is better than that of another man. [COCKBURN, C. J.—But has the deft. a right to tell a falsehood? The declaration alleges that the statement was false and malicious.] Yes; deft. had a right to say so, if he thought so. It is, at most, a reflection on the character of the goods, not of the plt. It does not say, even, that plts.' oil is not good; it merely says, deft.'s is better. [BLACKBURN, J.-I never saw a case go so far as this.] Edw. James, Q. C. (G. Jones with him) was called on by the court.-This is a libel on the plt.; the words are disparaging, and plt. has sustained special damage. [BLACKBURN, J.-The special damage will not help you, if the words are not defamatory.] They are so; this is a libel of a man in the course of his trade: (Ingram v. Lawson, 6 Bing. N. C. 212.) [BLACKBURN, J.There was a very serious imputation on the shipwowner. COCKBURN, C. J.-The deft. does not say that the plt. sells his oil as clear, and having an agreeable odour.] But that is the natural inference. (Evans v. Harland, 5 Q. B. 624, was also referred to.) before and at the time of the committing of the and bought the said oil in the said libel mentioned grievances hereinafter mentioned, the said letters patent instead thereof, and by reason and in consequence and the said privileges being then vested in the plts. in whereof also divers persons (that is to say, E. F. manner aforesaid, the plts. carried on business in part- G. H., naming them), who otherwise would have nership together, and still do carry on business in part- bought the said oil so manufactured by the plts., were nership together as, amongst other things, manu-induced to refrain from buying the same, and were facturers of and sellers of and traders in paraffin oil, being the oil herein before mentioned as the oil containing paraffin in the said indenture mentioned, and to which the privileges granted by the said letters patent relate, and the deft. contriving and intending to injure the plts. before suit, falsely and maliciously composed and published divers and very many false, seandalous and malicious libels of and concerning the plts, as such copartners, manufacturers and sellers, of and concerning them, as and in the way of their trade and business, as such manufacturers, sellers and traders, divers of such libels being each composed of a circular and report, such circular being in these words :"Liverpool, 30th Dec. 1861. 500 casks American refined petroleum kerosine or paraffin oil, manufactured by the Portland Kerosine Company, Portland, United States, and imported by Messrs. Maclean, Maris and Co., merchants, sold by Alexander S. Macrae, broker, Liverpool; and such report being in these words:" Professor Muspratt's report. I certify that I have carefully tested the above oil (meaning the said oil in the said libel mentioned, and meaning an oil other than and different from the oil so manufactured, sold and traded in by the plts. as aforesaid), and that I find it a colourless and somewhat aromatic liquid, while Young's Scotch (meaning the said paraffin oil) so manufactured, sold and traded in by the plts., and to which the said privileges relate as aforesaid) has a reddish brown tinge, is much thicker, and has a more disagreeable odour than it (meaning the said oil in the said libel mentioned). I further certify that in burning the two oils comparatively in the ordinary one shilling lamp, I found the power of the light produced by the American (meaning the said oil in the sail libel men- COCKBURN, C. J.-I am of opinion that our judgtioned) equals 4 wax candles. The sample of Young's ment should be for the deft. I am far from saying (meaning the said paraffin oil, so manufactured, sold that if a trader falsely and maliciously publishes a and traded in by the plts., and to which the said libel against another reflecting on the goods sold by the privileges relate), burnt under the same conditions in latter, although he does not attack his character, and the same lamp, yields, while the lamp remains well special damage ensued, that an action would not be filled, a light of nearly the same power as the maintainable, but that it is unnecessary to decide; American, but a feebler one after the oil has burned but then comes the question, assuming an action would down to one-half. The difference at this stage I find lie, does this declaration state sufficient to maintain to amount to nearly the light of one such candle,it? The declaration alleges that the deft. published or say 25 per cent. in favour of the Portland this circular falsely and maliciously; that might mean Kerosine Company's oil (meaning the said oil in the said that the statement as to the American oil was false, libel mentioned). (Signed) SHERIDAN MUSPRATT, Pro-and that it was not so good as stated; that fessor of Chemistry." And divers of such libels being is, the falsehood might consist in saying that composed only of the said report, thereby meaning and intending that the said paraffin so manufactured, sold, and traded in by the plts., and to which the said privileges relate, was oil of an inferior quality to the said oil in the said libel mentioned, and yielded a feebler light than the light yielded by the said oil in the said libel mentioned under like conditions, and yielded and would yield only an amount of light nearly the light of one of such wax candles as in the said libel mentioned, less or nearly or about 25 per cent. less than was yielded and would be yielded under like conditions by the said oil in the said libel mentioned; by reason and in consequence whereof the plts. have been prejudiced and injured in their said trade and business, and the reputation of the said oil so manufactured by the plts. has been injured, and the sale thereof has much diminished and fallen off, and the plts. have thereby lost great profits which they otherwise would have made, and by reason and in consequence of the said premises divers persons (that is to say, A. B. C. and D., naming them), who before the committing of the said grievances were used to buy the said oil so manufactured by the plts., ceased to buy the same, the American oil was colourless, and not in saying that the plt.'s was not so, and not that the fact was false which alleged that the plt.'s oil was inferior in quality. Nevertheless, we must not be taken to say that under no circumstances would an action be maintainable if an untruthful representation is made for the purpose of making the public believe A.'s article to be better than B.'s, but this statement merely amounts to a comparison of one oil with another, and is not the subject of an action. WIGHTMAN, J.—I am of the same opinion. Here there is no allegation that the plt.'s article was bad. Now, the special damage is said to be alleged. What damage? Why, that certain persons had bought the American oil, not that they had in consequence of the libel declined to buy the plt.'s. It seems to me that it only amounts to a comparison, and on the whole I think the action would not lie. BLACKBURN and MELLOR, JJ. concurred. Q. B.] MUNN . SOUTHALL-CORNWELL v. Sanders. Wednesday, Nov. 19. [Q. B. appeared before us the Rev. John Hailstone, clerk, and Henry James Haviland, Esq., two of her Majesty's justices of the peace in and for the said division and county, to answer an information laid against MUNN (app.) v. SOUTHALL (resp.) Refreshment-houses and Wine Licences Act-Who entitled to a wine licence-23 Vict. c. 27, s. 7. A beerhouse-keeper having obtained a refreshment-him by Edward Heath Saunders, of Chesterton, in the house licence, applied for a wine licence under the 23 Vict. c. 27, s. 7, when an objection was taken that he was not entitled to such licence as not coming within that section. It appeared that he provided travellers and others who came to his house with bread and cheese and other victuals as they required them: Held, that he was within the 7th section, and entitled to a wine licence. This was a case stated under the 20 & 21 Vict. e. 43, against the decision of justices permitting the resp. to take out a wine licence under the 23 Vict. c. 27, s. 7. That section enacts that "every person who shall be licensed to keep a refreshment-house, and shall pursue therein the trade or business of a confectioner, or shall keep open such house as an eatinghouse for the purpose of selling, to be consumed therein, animal food, or other victuals wherewith wine or other fermented liquors are usually drunk, shall be entitled (subject to the terms and conditions of this Act, and not being expressly disqualified thereby) to take out a licence to sell foreign wine by retail in such refreshmenthouse, to be consumed on the premises where the same shall have been sold, without producing or having any other licence or authority than as aforesaid, &c." The resp. had obtained a beer licence, and upon application to the Excise be obtained a refreshment-house licence under the before-mentioned Act. He then applied for a wine licence, and under sect. 13 the justices were called upon to refuse him permission to obtain one, on the ground that he did not carry on the business of a confectioner, or keep open his house as an eating-house for the purpose of selling therein animal food or other victuals wherewith wine or other fermented liquors are usually drunk. It appeared that he provided travellers and others who came to his house with bread and cheese and other victuals upon their calling for the same. The justices held that he was entitled to the licence. Mellish, Q. C. now appeared for the app., and contended that the house kept by the resp. was not within the Act, and that the selling of bread and cheese was not the object of his basiness, but was merely ancillary to the sale of beer. The COURT thought that the justices were perfectly right, and that the resp. was entitled to his licence. Appeal dismissed. CORNWELL (app.) v. SANDERS (resp.) Game-Trespass in pursuit of—Denial of ownership of land-Bona fides-1 & 2 Will. 4, c. 32, s. 30. Where upon an information under sect. 30 of the 1 f 2 Will. 4, c. 32 (Game Act) for trespassing in pursuit of game the deft. denies the ownership of the land, it is for the justices to judge of the bona fides of such defence, and if they are of opinion that it is not bona fide they are not ousted of their jurisdiction to determine the information. In such a case this court will not interfere with their decision if there is any evidence by which it can be supported: said county, attorney's clerk, whereby the said Holmes Cornwell was charged, for that he did on the 11th Dec. 1861, at the parish of Stow-cum-Quy, in the said county, unlawfully commit a certain trespass by being in the daytime of the same day upon a certain piece of land in the occupation of Clement Francis, lord of the manor of Stow-cum- -Quy, there in searchi of game without the licence or consent of the said lord of the said manor, or of any person having the right of killing game upon such land, or of any other person having any right to authorise the said Holmes Cornwell to enter or be upon the said land for the purpose aforesaid, contrary to the statute in such case made and provided, whereby, and by force of the said statute, the said Holmes Cornwell had forfeited a sum of money not exceeding 21, to be applied as the statutes in that behalf made or provided shall direct." Naylor appeared as counsel for the said Edward Heath Saunders; and M'Donald as attorney for the said Holmes Cornwell. The case then set out a large body of evidence in support of the information, in which was the inclosure award, with a plan annexed, and in the said plan the piece of land mentioned in the information is marked 56, and in the schedule to the said award it is described as being the property of " Quy Ditton and Horningsea parishes." The case then set out that Mr. M'Donald "addressed us on behalf of the deft., and submitted to us the three following points:First, that, assuming Mr. Francis to be the lord of the manor of Stow-cum-Quy, and the land numbered 56 on the said plan to be within the bounds of the said manor, there was no evidence to show that such land was a waste or common within the Act of Parliament of the 1 & 2 Will. 4, c. 32, ss. 10 and 30, such land being (as he contended) vested in the inhabitant householders of the several parishes of Stowcum-Quy, Fen Ditton and Horningsea, and not in Mr. Francis, as the lord of the said manor, and that under the case of The Grand Union Canal Company v. Ashby, 6 Hurl. & Nor. 394, the right of soil not being in the lord of the manor, the Act of Parliament did not give him the game, or make him legal occupier. Secondly, that the deft. had a prescriptive right of sporting over the said land numbered 56. Thirdly, that the justices had no jurisdiction, there being a bondâ fide question of title at issue. In support of the first point, Mr. M'Donald relied upon the award, the schedule to which described the land question as an old inclosure, and the proprietors as being the three parishes named, and also upon the fact of the drainage-tax being paid by the inhabitant householders, and adduced the following evidence upon the case. (The case then set out the evidence for the deft., and proceeded as follows):-"We having considered all the evidence adduced by both parties, determined that Mr. Francis was the lord of the said manor of Stow-cum-Quy; that the said land numbered 56 on the said plan, and in the evidence called Quy Fen or Common Fen, was a waste or common within such manor; that such land was not vested in Held (Wightman, J. dissentiente), that in this case the justices were right upon the evidence in convicting.in the inhabitant householders of the several parishes This was a case stated upon a conviction of the app. by justices upon an inforination under sect. 30 of the 1 & 2 Will. 4, c. 30, for trespassing in pursuit of game. The case stated as follows: "At a petty sessions held at Bottisham, in and for the petty sessional division of Bottisham, in the county of Cambridge, the 15th Jan. 1862, Holmes Cornwell, of the parish of Bottisham aforesaid, farmer, of Stow-cum-Quy, Fen Ditton and Horningsea, but that the said lord of the said manor was the legal occupier thereof, within the meaning of the 1 & 2 Will. 4, c. 32, s. 30; that the deft. had not proved that he had a prescriptive or any other right of sporting over the said land numbered 56, and that the deft. had not any ground for believing that he had any such right; and we found that the deft. was guilty of the |