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continent of Europe, but having fixed his residence in Cumberland, he purchased a house and a small quantity of land in the immediate neighbourhood of Mr. Hartley. Coming from a foreign land (Florence in Italy) he had given this residence the classical name of Tivoli-a name much celebrated in ancient times, and of course carrying with it the most pleasing recollections, as well as an idea of refinement. It did not appear, however, that the defendant had imported the urbanity of the countries he had visited-those refinements which we expect from one who has cultivated and has a taste for the fine arts; this would most clearly appear in the course of what he had to advance. In the month of November last, Mr. Hartley wishing to ornament the ground near his house, and to improve the breed of his sheep, made a purchase of eleven fine Leicestershire sheep, commonly called mug sheep, which were sent to him all the way from Tadcaster, and for which he gave 50 guineas; when they arrived, he turned them into a field which lies between his own garden and that of the defendant. Mr. Harriman, it appears, keeps three dogs at Tivoli (two pointers and a little terrier) for the purpose of defending his possessions. One of these pointers was of so savage a nature, that he spared neither man nor beast. Mr. Hartley and his servants had all been attacked by these outrageous dogs; they were not safe to come home at night, for it was at that time these animals were permitted to prowl wherever they pleased. When the sheep arrived, Mr. Hartley sent a message to Mr. Harriman, stating that as he had got some valuable
sheep, he hoped the defendant would take care of his dogs, as there was great reason to think they would worry the sheep. Mr. Harriman sent back word to Mr. Hartley, that he kept his dogs for the purpose of guarding his property, and if they were not enough he would keep 50 more. As was suspected, the dogs did fall upon the sheep several times, and at last they killed three, and bit four others so severely as to cause their deaths, thus spoiling the whole of the flock. As soon as Mr. Hartley was informed of this, he wrote a letter to Mr. Harriman couched in the mildest terms: it began"Accidents will happen. I am sorry that your dogs have injured my unfortunate little flock; I should have seen you this morning on the subject, but understood you were not up" and it concluded in the same strain and spirit by a proposition to Mr. Harriman to take the flock off his hands, paying him the first cost of 50 guineas. What could be fairer, or more gentlemanly, or more neighbourly than this? Mr. Hartley wanted nothing for bringing the sheep into Cumberland-he required nothing for their keep-he only wished to cover the expense of the first purchase, and so let the matter drop. But does Mr. Harriman follow the example of his neighbour? No, he waits some time, and then he replies by letter in a strain the very reverse of conciliatory. He says, having had time to investigate the charge of his dogs killing the sheep, he believes the same to be unfounded. He cannot but regret, therefore, that Mr. Hartley should have made such a charge; and in a strain of indignation he refuses to pay the 50 guineas, and
rejects any farther discussion of the subject. Now, contended the learned counsel, no man of proper feeling would have acted thus towards a neighbour who had always lived on the best terms with him, and who had been injured. Mr. Hartley was reluctantly driven into Court to seek that redress which he failed to get in a more amicable way: and Mr. Scarlett trusted the result of the appeal would convince the defendant that the law will not authorize him to keep dogs to assail either people or property.
After evidence was heard on both sides, the judge, Mr. Baron Wood, summed up. He said there were three questions for the consideration of the jury-First, whether the sheep had been attacked, or worried, as it was called, by the dogs Secondly, if they had been so worried, was it by Mr. Harriman's dogs? And, thirdly, whether Mr. Harriman had received sufficient previous notice to take care of his dogs? These were the simple questions for decision. In his opinion it was not necessary for the dogs to have actually bitten the persons they attacked to prove their savage na
Verdict for the plaintiff-Damages 241. 10s. Both plaintiff and defendant were in court during the trial.
Before the Master of the Rolls.Fieldes v Hooker. This was a case extremely interesting to all persons standing in the situation of owners or tenants of leasehold property. The question, which
came before the court on an exception to the Master's Report, was, whether the defendant, who
had entered into an agreement with the plaintiff to accept a lease for 21 years of a house in Crescent Place, Tavistock Square, was justified in refusing to carry the agreement into execution under the following circumstances:-The defendant having contracted to accept the lease for 21 years, desired to see the title of the plaintiff to grant him the term, upon which the plaintiff delivered him an abstract of his title, deducing it from a Mr. Burton, to whom the Skinners' Company had, in 1809, demised it, with other premises, for a long term. The defendant, not satisfied with this, desired to look into the title of the Skinners' Company, but their solicitor refused to produce the deeds. It was argued at the bar, that they had no right to expose their title at the risk of having some flaw found in it. Perhaps there was not a corporate company in the City of London who could show a good title to the property of which they pretend to be the owners. It was a circumstance recent in the memory of the court, that the Corporation of Newcastle had lost 7000l. a year, by imprudently exposing their title, to satisfy the curiosity of a person to whom their tenant had agreed to grant an underlease. It would be sufficient for the defendant to have from the plaintiff a covenant for quiet enjoyment. The defendant insisted, that unless he was perfectly satisfied as to the title of the Skinners' Company, he could not be compelled to perform the contract, and the company refusing to have their title inquired into, there was an end of the agree
The Master of the Rolls said, he should hesitate a long while before he determined that an owner of real property, by merely agreeing to grant a lease, became bound to shew a title to the estate out of which it was to be granted: but it was quite a different question, whether he who was unable, or thought it inexpedient, to show his titles to the property to be leased, should have a right to compel a defendant to take a lease of such property, without any other security for enjoyment than the covenants into which the lessor commonly entered. What the defendant had contracted for was not a piece of parchment, or a precarious enjoyment from one year to another, but an absolute enjoyment for 21 years, the value of which depended upon the certainty of its duration. Of this certainty of duration he could not be satisfied without examining the title of the Skinners' Company; and as the plaintiff was unwilling to trust the inspection of it to those who might probably discover some defect in it, the defendant was well justified in refusing to accept the lease. His Honour accordingly decreed, that the Master's judgment was erroneous, in having reported that a good title to the lease could be made, and that consequently the exception must be allowed.
NON-ATTENDANCE AT DIVINE
Bedfordshire Lent Assizes. The Rev. Edward Drake Free, Clerk, v. Sir Montague Roger Burgoine. This was an action of a very novel as well as of a very ex
traordinary description, and excited a considerable degree of interest throughout the county. Dr. Free, who is Rector of Sutton, appeared in Court, dressed in his canonicals, and was prepared to take part in the conduct of his own cause. The Court through
out was crowded almost to suffowas
cation. The jury, which common, having been sworn,
Dr. Free addressed the learned Judge on the Bench. He observed, that he had been driven into Court on the present occasion, in consequence of a motion made by the learned Counsel on the other side for judgment, in consequence of his not having proceeded to trial at the last assizes aided by the remarkable fondness of the attorney on the same side for money. It was not his intention to have taken any farther steps in this business, because he had observed with satisfaction that Sir Montague had begun to return to reason, by coming to church on the 7th of April last. The steps taken by the defendant's legal advisers, however, had compelled him to come forward: and in doing so, he felt he was vindicating the cause, not alone of his brother clergymen, who had been but too frequently maligned, but of the Church of England itself. He trusted the example which would be made of the defendant would operate as a warning to others, and prevent that inexcusable inattention to divine worship which, when occurring with a person of influence in the county, had the worst effects upon the habits and manners of the lower orders of society. Having made this short preface, he should leave
plaintiff in the most conclusive manner: for, in the first instance, he should be enabled to prove, that for several months of that period during which the servant of the reverend plaintiff had so positively sworn that she had regularly attended Sutton church, no divine service had been performed in the church at all: he meant the months of June, July, August, and part of September; during which months the plaintiff had so shamefully neglected his duties, that he had received a monition from the bishop of the diocese. He should also prove, that at other periods, the reverend plaintiff was so inattentive to the performance of the religious service of his church, that his parishioners were constantly in a state of uncertainty as to the hour at which service was to commence, or whether it would be performed at all. Independent of this, it was no very pleasant thing for the defendant, when he did go to church, to hear a sermon delivered, which, instead of inculcating divine truths, was made the vehicle of personal abuse to himself. With these facts before them, the jury would be able to form a pretty correct judgment of the motives of this action. The next ground on which he rested with confidence, on the goodness of his own cause, he derived from the statute of Elizabeth itself; for by the statute of the 1st of Elizabeth, which was embraced by the 23d, it was enacted, that where the defendant in a qui tam action, such as that now before the Court, could assign a reasonable excuse for absenting himself from public worship, and should afterwards conform to
his religious duties, the action should be quashed. On this head of defence he should be enabled to prove that Sir Montague Burgoyne, who was a general in the British service, had returned from Gibraltar in 1814, in a most precarious state of health, and had continued thus afflicted down to the present day, a circumstance which he hoped, in addition to the uncertainty of the performance of church service at Sutton, would be considered a sufficient excuse for his non-attendance. With regard to his sentiments on the subject of religion, those would be best proved by the evidence he would adduce of its being his invariable practice to read the church prayers to his family every Sunday, when capable from the state of his health so to do; and if unable himself to perform that duty, to call upon Lady Burgoyne to read for him. He should also prove, that prayers were frequently read in his house by the Rev. Dr. Hughes, in his occasional visits to his family. There was another ground on which he was still more decidedly entitled to a verdict. This was to be found in the statute of the 1st James II. c. 4, whereby it was enacted, that any person offending against the statute of Elizabeth, by a non-attendance of divine worship, became exonerated from all consequences, by conforming to the rules of his church before judgment was obtained, and declaring himself publicly to be a faithful son of the Church of England. This Sir M. Burgoyne had done in the presence of the bishop of the diocese himself, and was there ready again to declare openly in court his high veneration for, and accordance
a nount of the penalties, or in all ●vents for twelve months, which was the period within which the statute required the action to be brought. Witnesses were then
called to prove the case.
Mrs. Margarete Johnstone deposed as follows:-I resided at the parish of Sutton on the 2d of April, 1815. I attended the church every Sunday from that day to the first Sunday in April, 1816. I know the person of Sir Montague Burgoyne, and during all that period I never saw him come to church. I am quite sure I attended church every Sunday. I sometimes saw Sir Montague on horseback. In cross-examination she said she was servant to Dr. Free, and had been so for four years.
John Northfield, parish-clerk of Sutton, corroborated the testimony of the last witness. He saw Sir Montague come to church in April, 1816. He sometimes saw him coursing during the year
Mr. Jamesson here closed his
Mr. Sergeant Blosset said, if this was the plaintiff's case, his client was entitled to a verdict, as no evidence had been offered of Sir Montague Burgoyne living in the parish of Sutton.
Mr. Baron Graham, however, considered this to be a mere oversight, and recalling the witnesses, they proved the fact alluded to.
Mr. Sergeant Blossett now addressed the jury on the part of the defendant. He said, that however unwilling he might be to trespass on the Court by any very extended observations on this case, yet he could not help remarking,
that the assertion made by Dr. Free, that he had stood forward as the champion of the Church of England and of the clergy, was not borne out by the facts. When a reverend gentleman came forward into a Court of Justice in his canonicals, and in the character of an informer, to support a qui tam action upon a statute which, although unrepealed, had, been in disuse for upwards of one hundred and fifty years, he rather apprehended he would not be hailed by those whose interests he professed to represent, as a person likely to reflect much credit upon their sacred character. That such conduct was consistent with the true spirit of the Christian religion, he believed no man of liberal feelings would allow. With regard to the statute on which this action was brought, he was willing to admit that it remained unrepealed; but, at the same time, it was proper to remark, that it originated in causes of a political nature, and was by no means applicable to times like the present. Its operations were meant only to apply to Roman Catholics and Dissenters, at a period when the Church of England might be considered as in danger. The principles of toleration which had since been disseminated, however, and the firm foundation upon which the Church of England had been established, were such, that no man possessing the slightest claims to liberality would venture to put the construction upon the statute which it had received from the reverend plaintiff in this case. Without entering on the construction of the statute, however, he should be enabled to meet the plaintiff