This case, which had been three times previously adjourned, again
came on for hearing. It was a summons used by Mr. W. H. Mitchelmore,
butcher, of Dartmouth, against the defendants, for alleged poaching
on his estate, Lower Brownston, in the parish of Brixham, on the
9th of December last.
Mr Nelson prosecuted; Mr Carter defended.
Mr Carter made the same objection that he had previously, viz., that
the summons did not specify where the trespass was committed. Mr
Nelson considered that the Bench had already decided that question.
Mr Nelson gave a short account of the case, the chief points
of which were that complainant occupied part of the estate of Brownston,
belonging to Mr Seale Hayne. On the 9th of December last, Mr Fairweather
saw two people on Mr Mitchelmore’s land. He saw a gun fire, and
thereupon crossed Mr Mitchelmore’s fields, and observed defendants
in the hedge. In the afternoon he again heard the reports of guns,
and saw Mr Carter, with two guns in his hands, and a rabbit and
several others in his pockets. Mr Mitchelmore, who was down in his
barn, heard the firing, and on going out to see what was the matter,
met the defendant Carter, and he said to him, “What, are you here
again?” and demanded the rabbits he had. The complainant asked for
them in a quiet way, but were refused. This was the evidence with
regard to the trespass. With respect to the defendant, my learned
friend opposite contends that permission had been given. It seemed
to him very strange that although the case was adjourned especially
for Mr Carter’s convenience, to get Mr Hayne to attend the court,
that he was not here today. Mr Hayne was a gentleman that was frequently
in this neighbourhood, and there was no difficulty in getting him
there. With regard to the permission given by Mr Hayne, Mr Smith
asked him for a day’s shooting for a friend. The request was granted,
and on the 18th of November the defendant had his day’s sport, but
instead of confining himself to that day only, he went again on
the 9th of December. He would proceed to read letters which he had
received from Mr Hayne, and which would throw considerable light
on the matter.
Mr Carter objected to have the letters read.
Mr Nelson said that the letters were read before, at Mr Carter’s
The Bench, after a short consultation, ruled that the could not
be admitted as evidence.
Mr Nelson, continuing, said there was only one more point, and
that was, strictly and legally speaking, Mr Hayne had no right to
give permission, for his client was a yearly tenant, and in this
case all the game on that estate belongs to the occupier. Mr Nelson
then proceed to call
W.H. Mitchelmore, sworn—I live at
Dartmouth. I rent an estate called Lower Brownston. Mr Seale Hayne
is my landlord, and I am a yearly tenant. I have about 95 acres.
On the 9th of December last I went to my barn. I heard guns fire,
and I went in the direction of the sound. I met Mr Carter and Mr
Rogers, the defendants. I said to Mr Carter you are here again today.
He had two guns and a rabbit in his hand. It was between 3 and 4
o’clock in the afternoon when I met him in my field. He had also
his pockets full of them. I said, what right have you here? He replied,
more right than you have. I said, those rabbits you have belong
to me, and I must have them. He said, if you try to take these rabbits,
I will shoot you. He then dropped one rabbit he had in his hand,
and one of the guns, and he stood at bay, and pointed the gun towards
me. The gun was not cocked at the time, be he cocked both barrels.
I picked up the gun and rabbit he dropped on the ground. He then
dropped the gun he had in his hand, and plunged into me, and struck
me, and callered me. I have never given Mr Carter permission to
come on my land. I have seen him there before, in the field close
to the house and court. I have seen him and Rogers there before,
about three weeks before the 9th December. We had some conversation
on that occasion.
Cross-examined by Mr Carter—I took
these proceedings myself. My landlord had nothing to do with it.
I am a butcher and farmer. I have no agreement between my landlord
and myself. All my agreements have been verbal. Mr S. Hayne does
shoot over the estate, and I do not object to it. I have never seen
others there, except your two clients. The defendant Carter was
walking across the field when I met him. At that time he was out
searching for game. He was carrying two guns. This was the nearest
road to Mr Smith’s house. I did not make use of any bad language
to defendant, but I said I would take the rabbits. I did not take
the gun, nor did I see my son take it. The other gun was taken up
by a man named Harvey. The field is in my occupation. I did not
take away any rabbits. Some children took them away. I did not see
them shot upon my ground. I do not know how many there were. The
gun was first taken in the linhay1
and I afterwards took
possession it. It do not know what day it was.
By Mr Nelson—I gave the gun to Mr
Rogers, on condition that it should be brought here if required.
Mr T Fairweather, sworn—I am a farmer
living at Boohay, in the parish of Brixham. On Saturday the 9th
of December, between 9 and 10 in the morning, I was at work in my
field, which was opposite the one occupied by Mr Mitchelmore. I
saw two people in the field rabbiting, one on each side of the hedge.
I saw them several times, there being only one field between us.
I then went to Mr Mitchelmore’s court, and stopped there until 12.30,
when I went home to dinner. I went across Mr Mitchelmore’s fields,
and saw the defendants trying the hedge for rabbits, both in complainant’s
field. I heard Rogers say, have you got the ferret, as I passed
Cross-examined by Mr Carter—This hedge
was adjoining my field. I did not see any ferret as I walked on.
When I saw them I was in Mr Mitchelmore’s field.
Mr W Bartlett, sworn—I occupy a farm
called Coulton, in the parish of Brixham. On the 9th of December
last I saw the defendants in Mr Mitchelmore’s field, about 1 p.m.
Carter had a gun in his hand, and was standing, evidently watching
for something. I did see him fire, but I heard some shooting. Later
in the day, about 4 o’clock, I saw both the defendants in an adjoining
field. Mr Carter was at that time scuffling with complainant.
Cross-examined by Mr Carter—I have
known Mr Mitchelmore some years. He knows me well. The first time
I saw Rogers, on the 9th December, was in a field of turnips belonging
to Mr Michelmore. I was fixing some steam thrashing machinery.
Mr Carter, in his speech for the defence, said that there was
not the slightest ground of evidence against the defendant Rogers
to show that he was upon a certain piece of land in search of game;
and with respect to the defendant Carter, that he was in pursuit
of game, because rabbits were in his possession, was no evidence
that these rabbits were taken on Mr Mitchelmore’s grounds. All the
evidence went to show that firing was heard, but no seen. In his
opinion the whole case fell through, for want of evidence.
The Bench decided to hear the defence, and Mr Carter, after giving
a short summary, proceeded to call
Mr F. Y. Smith, of Penang Villa, sworn—I
live at Penang Villa, Brownston. I purchased the property nine years
ago. I know Mr S. Hayne quite well. I am also acquainted with Mr
T. Carter. I and my tutor, Mr Lewis, saw Mr Hayne in the month of
December about half-way between my house and Kingswear. He gave
me permission to invite a friend, to have a day or two’s sport.
I then invited Mr Carter to come down, and he came in consequence
of my invitation.
Cross-examined by Mr Nelson—Mr Hayne
wrote that the day that was fixed would not suit. I do not recollect
when this conversation took place; it might be before December.
Mr Carter had been down shooting twice-once before the 9th. The
first time he was there, was after the conversation with Mr Hayne.
I gave him permission twice.
By Mr Carter—The letter produced was
the first invitation. Both times he came down at my invitation.
I believe I had general permission to invite my friends.
By Mr Nelson—I will not swear when
the letter was posted. I did not know that the defendant Carter
had shot on the Saturday previous.
Mr W. D. Lewis—I am tutor at Mr Smith’s.
I me Mr Seale Hayne, when in company with Mr Smith, about the latter
end of November. On permission being asked by Mr Smith, Mr Hayne
said he might have leave to invite a friend when he pleased, but
he must shoot rabbits. I saw complainant on the 9th of December,
on the occasion when he was attacked.
The Bench, after a short consultation, dismissed the case, on
the ground of the loose understanding of the rights of shooting
between Mr Hayne and Mr Mitchelmore, and that the defendant had
received permission of Mr Smith.
This arose from the last case, and was an alleged assault committed
by Mr Carter on Mr Mitchelmore on the 9th Dec.
Mr Nelson appeared for Mr Mitchelmore, and Mr Carter for defendant.
Mr Mitchelmore, sworn, said—on the
9th Dec last I saw the defendant walking towards me, he had two
guns and a rabbit in his hand. I said you are here again to-day;
and he replied he had more right there than I had. I demanded what
he had belonging to me. He said if you attempt to touch these rabbits
I will shoot you, but when he saw me stoop to pick up the
rabbits he ran at me and struck me. After that we grappled, and
he fell on the ground, and I on top of him. I then said I can serve
you as I like, but I did not strike him.
Cross-examined by Mr Carter—I fell
on him. I kept him down tow or three minutes. I demanded the rabbits.
I did not demand the gun. When he threatened to shoot me I picked
up the gun and said I would have it.
By Mr Nelson—Before any thing of this
transpired the defendant struck me.
Mr Harvey, sworn, said—On the 9th
Dec. I was at work on Mr Mitchelmore’s farm. Mr Mitchelmore called
upon me to come to his assistance, and I saw the defendant strike
the complainant in the face. Mr Carter dropped the gun and I picked
it up. I kept the gun until the scuffle was ended. I heard Mr Carter
say I will shoot you.
Cross-examined by Mr Carter—I did
not see the consequences of the scuffle. I do not know Mr Mitchelmore’s
son. I did not strike Mr Carter. When Mr Mitchelmore demanded the
rabbits, defendant said if you attempt to take the rabbits I will
shoot you. After the scuffle was over all walked towards the barn.
After we had gone about thirty yards Rogers came and challenged
to fight either of us, and Mr Carter put his fist in my face.
Mr N. Bartlett, sworn, said—On the
9th of Dec. last I was on Lower Brownston estate. Saw Carter and
Mitchelmore struggling together, both having hold of a gun. G. Harvey
was there. Rogers came afterwards. I took the cartridges out of
For the defendant, Mr Carter called
J. Rogers, who said—On the 9th of
Dec. I went as servant to Mr Carter. He left me in charge of the
guns. I saw Mr Carter on his back and complainant on him. I asked
Mr Mitchelmore several times for my gun, and he said he did not
know anything about it.
1A double-storied open-sided structure comprising
a cattle or cart shelter on the ground floor with a hayloft above.