of Tuff v. Warman, 2 C. B. N. S. 740 (E. C. L. R. vol. 89). There, in an action for an injury to the plaintiff's vessel in consequence of a collision with a vessel under the control of the defendant,-there being conflicting evidence of negligence on the one side and on the other,the jury were told, that, if the negligence or default of the plaintiff was in any degree the direct or proximate cause of the damage, he was not entitled to recover, however great might have been the negligence of the defendant; but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might by the exercise of ordinary care have avoided it: and it was held that this was a proper direction. Williams, J., [*8 *there says: "With regard to the alleged misdirection, I must confess, after well considering the case of Dowell v. The General Steam Navigation Company, 5 Ellis & B. 195 (E. C. L. R. vol. 85), I am unable to distinguish the mode of directing the jury here from that which the Court of Queen's Bench sustained there. The law was there laid down, in conformity with several previous decisions, that, if the negligence or default of the plaintiff was in any degree the proximate cause of the damage, he cannot recover, however great may have been the negligence of the defendant; but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question is whether the defendant might not by the exercise of ordinary care have avoided it." The decision of this Court in Tuff v. Warman was affirmed by the Exchequer Chamber, on appeal,5 C. B. N. S. 573 (E. C. L. R. vol. 94), on which occasion, Wightman, J., in delivering the unanimous opinion of the Court of Error, says: "It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter, not; as, but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such, that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened; nor if the defendant might by the exercise of care on his part have avoided the *consequences of the neglect or carelessness of the plaintiff. This appears to be [*9 the result deducible from the opinion of the Judges in Butterfield v. Forrester, 11 East 60, Bridge v. The Grand Junction Railway Company, 3 M. & W. 244,† Davies v. Mann, 10 M. & W. 546,† and Dowell v. The General Steam Navigation Company, 5 Ellis & B. 195, 206 (E. C. L. R. vol. 94)." Applying those principles to the facts of this case, it appears to me that the jury were well warranted in finding that the proximate cause of the misfortune sustained by the plaintiff was the culpable want of caution on the part of the deceased. And, the direction of the learned Judge having been framed in the very words in which directions in these cases are almost always given, I

feel bound to hold that the direction and the verdict were in accordance with the law and the facts. KEATING, J., concurred.

The general rule, reiterated in this case, that the party injured cannnot maintain an action, if by his own negligence he has contributed to the injury, must, to employ the language of Denio, J., be considered "a legal postulate." One of latest American cases upon the point is Wilds v. The Hudson River Railroad Company, 10 Smith (New York Court of Appeals, 1862) 430, where the rule is laid down broadly and unequivocally. The right to recover damages depends upon the fact that the injury was attributable to the defendant exclusively; if it were occasioned in any degree by the negligence of the plaintiff, in other words if it would not have happened without plaintiff's contributing negligence, he cannot recover. See also Button v. The Hudson River Railroad Company, 4 Smith (New York Court of Appeals, 1858) 248, and cases cited; Cox v. Westchester Turnpike Company, 33 Barb. (N. Y. Sup. Court, 1861) 414; Bieseigel v. The N. Y. Central Railroad Co., Id. 429; Horton v. Ipswich, 12 Cush. (Mass. 1853) 488; Todd v.

Rule refused.

The Old Colony, &c., Railroad Co., 7 Allen (Mass. 1863) 207. An extraordinary application of this principle is to be found in The Philadelphia and Reading Railroad Co. v. Hummel, 8 Wright (Pa. 1863) 375, where the mere presence of a child on a railroad track, not at a highway intersection, is of itself held to be such contributing negligence as to make it error for a court to submit the question to the jury.

This is also an illustration of the rule that the plaintiff must make out a prima facie case of exclusive negligence on the part of the defendant, before he is permitted to go to the jury: Johnson v. The Hudson River Railroad Co.; Wilds v. The Hudson River Railroad Co. It is not absolutely necessary, though it is frequently so stated, for the plaintiff to establish affirmatively his own freedom from negligence; it may result negatively from the character of defendant's delinquency: Johnson v. The Hudson River Railroad Co.; where the authorities are carefully reviewed.

*10]

*JAMES OSBOND, Appellant; THOMAS MEADOWS, Respondent. May 5.

A., being upon his own land (or land upon which he was privileged to shoot), fired at and killed a pheasant in the land of B., and went upon B.'s land (without leave) and picked it up: -Held, a trespass "in search or pursuit of game," within the 1 & 2 W. 4, c. 32, s. 30,-the whole being one continuous act.

THE following case was stated for the opinion of this Court pursuant to the 20 & 21 Vict. c. 43:

On the 4th of January, 1862, information was duly laid and deposed to on oath before one of Her Majesty's justices of the peace for the county of Northampton, that one Thomas Meadows did on the 3d of December, 1861, at the parish of Corby, in the county of Northampton, commit a certain trespass by being in the daytime of the same day upon a certain close of land in the possession and occupation

of Thomas Underhill there, in pursuit of game, without the license or consent of any person having any right to authorize the said Thomas Meadows to enter or be upon the said land for the purpose aforesaid, contrary to the statute.

The following is a copy of the information:"County of Northampton, to wit.

Be it remembered, that, within three months after the commission of the offence hereinafter mentioned, to wit, on the 4th day of January, 1862, at Carlton, in the said county of Northampton, James Osbond, of Corby, gamekeeper, in the said county, in his proper person, cometh before me, G. P., one of Her Majesty's justices of the peace in and for the said county, and now here giveth me the said justice to understand and be informed that Thomas Meadows, farmer, of the parish of Corby, in the county of Northampton, did within three calendar months now last past, to wit, on the 3d of December, 1861, at the parish of Corby, in the said county, unlawfully commit a certain trespass by being in the daytime of the same day *upon a certain close of land in the possession and occupation of Thomas Underhill, farmer, there, [*11 in pursuit of game there, without the license or consent of the owner of the land so trespassed upon, or of any person having the right of killing game upon such land, or of any other person having any right to authorize the said Thomas Meadows 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 Thomas Meadows has forfeited a sum of money not exceeding 21., to be applied as the statutes in that case made and provided direct: And thereupon the same James Osbond prays that the said Thomas Meadows may be duly caused to appear before one or more of Her Majesty's justices of the peace in and for the said county, to answer to the said information, and to be further dealt with according to law." "County of Be it remembered, that, after the exhibiting of Northampton, the within-contained information, but before any proto wit. ceeding had or taken upon such information either for summoning the said Thomas Meadows, the party accused, or compelling his appearance to answer the same, to wit, on the 4th day of January, 1862, at Carlton, in the said county, one Daniel Bell, gamekeeper, of the parish of Corby, in the county of Northampton, a credible witness in this behalf, cometh in his proper person before me the within-named justice of the peace in and for the said county of Northampton, and is now here duly sworn by and before me the said justice; and, having heard the said information read, and fully understanding the same, does now here upon his oath aforesaid before me the said justice depose and swear that the charge contained in the said information is true and correct: And the said charge is now here *deposed to and substantiated to my satisfaction before me the [*12 said justice on the said oath of the said Daniel Bell, so being such credible witness as aforesaid, according to the form of the statute in such case made and provided."

The charge was heard on the 8th of January, 1862, before three justices of the peace for the county of Northampton, at the petty sessions held at Kettering, at which both appellant and respondent appeared. It was proved at the hearing that the respondent, who had a

license to kill game, whilst in a close of land in the parish of Corby occupied by one George Chapman, over which he (the respondent) had the right of shooting, shot a pheasant, which was on the ground in an adjoining close, occupied by one Thomas Underhill, over which the Earl of Cardigan (to whom the appellant was game-keeper) had the exclusive right of shooting. It was proved that the pheasant was killed by the shot, and that the respondent afterwards went a short distance and got over the fence out of Chapman's close into the close occupied by Thomas Underhill, and there picked up the dead pheasant.

Having heard the evidence for the appellant, and the statement made by the respondent, who produced no evidence, the justices dismissed the case; the grounds of their determination being,-first, that, regard being had to the decision of the Court of Queen's Bench in the case of The Queen v. Pratt, 1 Dears. & P. C. C. 502, the act of shooting the pheasant by the respondent on the close of land in the occupation of Thomas Underhill, although actionable, did not constitute a trespass under the 30th section of the 1 & 2 W. 4, c. 32, the respondent not having been in that close when he shot, but in one occupied by George Chapman, where he was not a trespasser, secondly, that the justices had some degree of doubt (to the *benefit of which *13] they considered the respondent entitled, the statute being a penal one), whether the subsequent entry on the close of land stated in the information, for the purpose of fetching the pheasant, which was then dead, as proved by the evidence, was such a trespass in pursuit of game as is contemplated by the 30th section of the above-mentioned Act; the doubt whether the provisions of that section apply to game when dead having been brought to their consideration by reference to a periodical called The Justice of the Peace, in which the case of The King v. Halloway, 1 C. & P. 128 (E. C. L. R. vol. 12), is quoted as an authority in favor of such doubt.

The question for the opinion of the Court was, whether the justices were right in point of law in dismissing the case upon the grounds above stated.

E. Bennett, for the appellant.-The respondent was clearly trespassing in pursuit of game, within the 30th section of the 1 & 2 W. 4, c. 32. That section recites, that "whereas, after the commencement of this act, game will become an article which may be legally bought and sold, and it is therefore just and reasonable to provide some more summary means than now by law exist for protecting the same from trespassers," and then proceeds to enact, "that, if any person whatsoever shall commit any trespass by entering or being, in the daytime, upon any land in search or pursuit of game, or woodcocks, &c., such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding 27., as to the justice shall seem meet, together with the costs of the conviction." To shoot at a bird on the land of another, the party firing being at the time on the highway (or on his own land or the land of a third person), though an actionable trespass, is not an offence within this statute: *14] The Queen v. Pratt, 1 Dears. & P. C. C. 502. [ERLE, C. J.-The only question is, whether the appellant was guilty of a trespass in pursuit of game, by going on to the land to pick up the dead pheasant.

You can hardly hope to reverse the decision of the justices on the first point.] It is submitted that the shooting and the entering upon the land for the purpose of picking up the dead bird constituted one continuous act of trespass. It is assumed throughout the statute that dead game is "game." [ERLE, C. J.-The Larceny Act, 24 & 25 Vict. c. 96, s. 14, contemplates dead deer as "deer."] In Morden, app., Porter, resp., 7 C. B. N. S. 641 (E. C. L. R. vol. 97), it was held by Williams, J., that a party trespassing in pursuit of game is not the less guilty of the offence provided against by this statute, because he had no intention to commit a trespass, but bonâ fide believed that he had the license of the occupier for shooting over the land. A fortiori must the party be guilty of the offence, where, knowing the boundary, he wilfully passes over it to perfect an act of trespass already com- . menced by firing over the land. The case of Loome, app., Bailey, resp., 30 Law J., M. C. 31, is also an authority, as far as it goes, that "game" means game whether alive or dead. Wightman, J., says: "The whole question turns on the meaning to be given to the words 'birds of game' in the 4th section. Now, the words must clearly have the same meaning throughout the section, and the exception in the latter clause, except birds of game in a mew or breeding-place,' beyond all question applies to live game, and, indeed, is only applicable to live birds. It is clear, therefore, that the phrase 'birds of game' was intended certainly to include live birds of game, and dead also, in all probability."

No one appeared on behalf of the respondent.

land [*15

*ERLE, C. J.-I desire to reserve for another occasion the consideration of the question whether the merely entering upon for the purpose of picking up dead game would constitute a trespass within the meaning of the 1 & 2 W. 4, c. 32, s. 30. But I am satisfied to give my judgment for the appellant, on the ground, that, in substance and reality, the shooting the bird and going upon the land to pick it up was one transaction. The respondent, being upon the land of an adjoining owner, fires at a bird and kills it, and he immediately steps upon the land to pick up the dead bird. The act of going on the land to pick up the bird relates to the act of shooting, and the whole was one transaction. I therefore think that the justices would have been well warranted in coming to the conclusion that the respondent had been guilty of the act of trespass charged against him. With the reservation before mentioned, I hold this without any hesitation. And the case must go back to the justices with this intimation.

WILLES, J.-I am entirely of the same opinion. The pursuit under s. 30 continues until it is consummated by the picking up of the dead bird.

BYLES, J.—If I were called upon to decide whether or not dead game was within the meaning of the clause in question, I should have desired time to consider. But I entirely agree with the rest of the Court in thinking that the pursuit commenced with the act of firing, and terminated with the act of picking up the dead bird. There was a pursuit of game, and there was a trespass. It would be highly inconvenient if we were to inquire in every case whether the bird had breathed its last or not at the time it was picked up. The appellant is clearly entitled to succeed.

C. B. N. S., VOL. XII.-3