Morden v Porter
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1860 |
| Date | 01 January 1860 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 967
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 29 L. J. M. C. 213; 1 L. T. 403; 8 W. R. 262. Explained, Dickenson v. Fletcher 1873, L. R. 9 C. P. 5; R. v. Prince, 1875, L. R. 2 C. C. 164. Referred to, Watkins v. Major, 1875, L. R. 10 C. P. 666; Shenas v. De Rutzen, [1895] 1 Q. B. 922. Followed, R. v. Tyrone JJ., [1902] 2 I. R. 79.
[641] larman morden, Ajipellant; henry john porter, liespondent. 1860. [S. C. 29 L. J. M. C. 213 ; 1 L. T. 403 ; 8 W. E. 262. Explained, Dickemm, v. Fletcher, 1873, L. E. 9 C. P. 5; E. v. Prince, 1875, L. E. 2 C. C. 164, Eeferred to, Watkin* v Major, 1875, L. E. 10 C. P. 666; Shenas v. De Ruizes, [1895] 1 Q. B. 922. Followed, E. v. Tyrone JJ., [1902] 2 I. E. 79.] A complaint of trespass in pursuit of game, under the statute 1 & 2 W. 4, c. 32, s. 30, need not be made by a person having an interest in the land.-The leave and licence of theioccupier, to be an answer to such complaint, must precede the act of trespass. -And, semble, per Williams, J.,-Keating, J., dubitante,-that the party trespassing is not the less guilty of the offence because he bona fide believes that he has the licence of the occupier to shoot over the land. At a petty sessions holden at Ely, in the Isle of Ely, on the 6th of October, 1859, before three justices of the peace for the said Isle of Ely, an information preferred by Larman Morden, of the parish of Wilbur-ton, in the said isle, gamekeeper (hereinafter called the appellant), against Henry John Porter, of the parish of Haddenharn (hereinafter called the respondent), under the 30th section of the statute 1 & 2 W. 4, c. 32, charging "for that the said Henry John Porter, within three calendar months then last past, that is to say, on the 1st of October then instant, at the parish of Wilburton, in the said Isle of Ely, did unlawfully commit a certain trespass, by entering in the day-time of the same day upon certain land in the possession and occupation of John Ereritt there, in search of game, without the licence or consent of the owner of the land so trespassed upon, or of any person having the right of killing the game upon sueh land, or of any other person having the right to authorize the said Henry 968 MORDBN V. PORTER 7 C. B. (N. S.) 642. John Porter to enter or be upon the said land for the purpose aforesaid, contrary to the statute iri such case made and provided," was heard and determined by the said justices; and upon such hearing they dismissed the information. The appellant being dissatisfied with this determination, as being erroneous in point of }a,w, the following case was stated by way of appeal, pursuant to the statute 20 & 21 Viet. c. 43 :- At the hearing of the aforesaid information, it appeared that it was laid by the appellajit in his character of gamekeeper to Lady Pell, who is lady of the manor of Wilburton, and that the land on which the [642] alleged trespass was committed, containing about nine acres, was situate in that parish, holden by copy of court-roll of that manor, and was the property of John Everitt, as stated in the information. The respondent admitted the fact of being on the land in search of game ; but pleaded leave and licence from the owner and occupier, and denied the right of the appellant to prefer the information. It appeared that the respondent, the son of a farmer and brewer in the adjoining parish, is duly certiticated, and went to Wilburton on the day in question, on the invitation of one Albert Bailey, for a day's shooting; and, knowing that Lady Pell would not allow any one over her land, he from time to time inquired of Bailey, who accompanied him, but without a gun, whether they were at liberty to go into the land through which they passed, arid was assured by Bailey that he had full liberty to go over the land in question. John Everitt, in his examination, proved that he had not given specific permission to the respondent before the day in question : but it was proved, that, on the respondent's asking his permission the night previous to the hearing to go over his land, he had said " they might go over it and welcome, for he wished all the game in the pariah was killed;" and that he also, at the same time, said, that, "if the respondent had asked him permission before this happened, he should have given it him." It was also proved by Bailey that he (Bailey) went at all times over Everitt's land, and Everitt went oyer his land, by mutual consent; but there was no evidence of that permission being expressly stated to extend to shooting; and Bailey clid not take out a game certificate. The justices being of opinion that the appellant had no such interest in the locus in quo as would support a...
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