from Oxford to Abingdon, had brutally and unmercifully beaten his horse, but though neither of the horse's eyes was literally knocked out, yet the animal had been so dreadfully injured, that it was necessary to bind up both his eyes, and it was in evidence that he could not see with either for three or four days. In the result, the animal recovered the use of both his eyes, under the skilful treatment of a farrier. It must be admitted then, that there was no proof that either of the animal's eyes was knocked out, but it is submitted that the want of proof of the truth of this allegation will make no difference. The case of Edwards v. Bell (a) seems to be an authority for this. That was an action for a libel against the printer of a newspaper. The plaintiff was minister of a dissenting assembly or congregation, at Great Marlow, in Buckinghamshire. The paragraph complained of was to the following effect: "A serious misunderstanding has taken place between a dissenting minister at Great Marlow and his congregation. The cause of it originated out of some prejudicial reflections thrown out by the minister, against a young lady of great accomplishments and spotless reputation. The matter, we understand, is about to be taken up with a strong hand." The defendant pleaded a justification of the alleged libel, which failed in proof in two particulars; first, that it did not appear that any serious misunderstanding had taken place between the minister and his congregation; and second, that, instead of proving, as was alleged, that the plaintiff had delivered the offensive words complained of from the pulpit, he had, in point of fact, delivered them from a tent or other station assigned to him. The Court, after a verdict found for the plaintiff, allowed judgment to be entered for the defendant non obstante veredicto. It cannot be denied that these parts of the libel in that case were material in aggravating the character of the libel. In the present case the libel was proved to be true in most of its material circumstances. It was proved that the animal presented a shocking spectacle, and (a) Not in print. 1824. WEAVER V. LLOYD. 1824. WEAVER v. LLOYD. though the eye was not literally knocked out, yet that was only one of the circumstances entering into the description of the barbarity alleged. The third plea was completely made out in evidence, and on the authority of the case cited, the Court will give judgment for the plaintiff non obstante veredicto. ABBOTT, C. J.-I am of opinion that neither of the defendant's pleas was proved. I take it that the two statements which remain unproved, were material parts of the libel; first, the particular description of the state of the horse, in alleging that his eye was literally knocked out; and secondly, in stating that the plaintiff had ordered a person who had the care of it, not to allow any body to see the horse. The defendant, by his second plea, undertakes to prove the whole truth of the libellous matter. He has failed to make out these two material allegations, and therefore that plea cannot be supported. Then as to the third, I am of opinion that when a defendant says that a libel is true in substance and effect, that must be understood to mean, that every material particular contained in it is true. The defendant, therefore, has not proved the truth of his third plea, and consequently the verdict must stand. BAYLEY, J.-I am of the same opinion. The defendant's pleas of justification go to the whole matter contained in the libel, and consequently he is bound to prove every material circumstance justified. I am of opinion that both the circumstances which failed in proof, were material parts of this libel. It is alleged that the plaintiff was guilty of barbarity towards his horse by beating, whipping and spurring him, and that the animal presented a shocking spectacle, and that one of his eyes was literally knocked out. Taking it that the substance of the libel was in treating the animal with barbarity, still the allegation of having knocked the eye out, was an excess of barbarity which was not proved. It is a general rule, that the justification must go the whole length of the libel in all its material parts. This justification does not go that length, and therefore there is no ground for disturbing the verdict. HOLROYD, J.-If Mr. Taunton's argument could prevail, it must go this length, that where a libel charges a plaintiff generally, with cruel usage to his horse, and then goes on to describe the particulars of that usage minutely, it is sufficient for a defendant in his justification, to prove the cruel usage generally, without proving any of the particulars of it. I have never understood that to be the rule; on the contrary, I apprehend it has always been held, that in order to support a plea of justification in an action for a libel, all the libellous matter must be proved to be true in its particulars. That certainly has not been done in the present instance, and therefore these pleas being unsupported by the evidence, the declaration remains unanswered, and the plaintiff is entitled to a verdict. LITTLEDALE, J.-The defendant's evidence has failed him in the most important part of the case, for the most serious and defamatory charges contained in the libel, turn out to be wholly unfounded in truth. It is, as it appears to me, a much more offensive thing to publish of a man that he has knocked his horse's eye out, and that having done so, he has given orders to prevent any person from examining it, than merely to say, in general terms, that he has been guilty of cruel usage towards his horse, and rendered it a shocking spectacle. Such a detail of particulars following the general charge, goes to the very gist of the action, because they are matters of great aggravation, which must naturally and properly tend to increase the quantum of damages. I am therefore clearly of opinion, that these pleas are unsupported by evidence in the most important particulars, and that they present no sufficient answer to the action. Rule refused. 1824. WEAVER v. LLOYD. Monday, May 10th. Twenty years' the land of for presuming cence to open CROSS v. LEWIS. uninterrupted CASE for obstructing four ancient windows in plaintiff's enjoyment of windows, house. Plea, not guilty, and issue thereon. At the trial looking upon before Holroyd, J., at the last Assizes for Lancashire, it another, is suf- appeared in evidence, that the plaintiff's house was situate ficient ground at Blackburn. The defendant having bought some neigha grant or li- bouring premises from Dr. Heber's family, took them down, the windows, and in their place erected a high building which it was adin the absence mitted diminished the quantity of light before entering at the the contrary. plaintiff's windows. Between the plaintiff's and the defenhad enjoyed dant's premises, in the direction towards the building of which lights made in complaint was made, there was a yard or passage, into which a building not the windows looked, belonging to the plaintiff, of three feet seven inches in width, which went along the whole line of his house, and formed an easement to his premises. Bepremises of B., tween the building in question and the plaintiff's house, of evidence to Where A. erected at the extremity of his land, look ing upon the without inter ruption for at there was a space altogether of fourteen and a half feet. least 38 years, There was no evidence whatever of the time when the plain and there was the time when first put out, and C. the purchaser of B.'s premises, erected in no evidence of tiff's four windows were first put out, but one witness the lights were deposed that he remembered them thirty-eight years. It was proved that the defendant took possession of the premises which he had pulled down, about a year previously to the erection of the building in question, and that a Mrs. Percy their stead a had occupied the premises bought by the defendant, for building which obstructed A's twenty years, whilst they were the property of Dr. Heber's lights: Held family, but on what terms she occupied was not known. It was maintain- appeared that Dr. Heber's family lived in a distant part of Shropshire, and there was no evidence that any agent on behalf of the family had been in Blackburn to survey the was no proof premises during the time they were in Mrs. Percy's occupation. On the part of the defendant it was contended, first, that in consequence of the local situation of the plaintiff's the windows. premises, the usual doctrine whereby leave and licence from that an action able for the obstruction, though there of knowledge in B. or his agents, of the existence of the owner of the adjoining land, to open windows, might be presumed, did not apply, inasmuch as the windows in question, might have been put out without any licence whatever; and second, assuming that doctrine to apply notwithstanding the situation of the premises, still it could not come into operation for want of notice to the original proprietor of the land whereon the defendant's building was erected, and Daniel v. North (a) was cited. The learned Judge was of opinion that the plaintiff had made out a primâ facie case to entitle him to a verdict; and, in the absence of evidence to the contrary, he directed the jury to presume, that these were ancient lights, inasmuch as they appeared to have existed without interruption or obstruction for a period of at least thirty-eight years; but on the authority of Daniel v. North his lordship gave leave to move for a new trial, if the Court should differ from him as to the propriety of his direction. The Jury, under his lordship's directions, found their verdict for the plaintiff, with nominal damages. J. Williams now moved for a rule nisi for a new trial, and renewed the objections taken at Nisi prius. First, the usual doctrine of presumption as to the existence of a grant or agreement, does not arise in this case, for this plain reason, that the windows in question might originally have been put out without any licence whatever from anybody. A man may build to the extremity of his own land, and open what windows he pleases, subject, however, to have them obstructed by his neighbours, who have an equal right to build in the same manner. It is only in cases where the act is originally unlawful, or wrongfully done, that the doctrine of presumption by acquiescence, arises. In such cases, from lapse of time, a grant or licence to do the thing which is primâ facie unlawful, may be presumed, or a right may be acquired, in consequence of the acquiescence of those who have slumbered over their own interests. Here there was (a) 11 East, 372. 1824. CROSS V. LEWIS. |