was inadmissible to vary the written agreement, or for judgment for the plaintiff on the second plea non obstante veredicto, on the ground that the agreement in that plea was not stated to be in writing. He referred to Adams v. Wordley, 1 M. & W. 374.†

Huddleston, Q. C., and Holl, who appeared to show cause against the first rule, were stopped by the Court.

Shee, Serjt., and Sharpe, in support of that rule, contended, upon the authority of Turner v. Power, 7 B. & C. 625 (E. C. L. R. vol. 14), 1 M. & R. 135 (E. C. L. R. vol. 17), Whitford v. Tutin, 10 Bingh. 394 (E. C. L. R. vol. 25), 4 M. & Scott 166 (E. C. L. R. vol. 30), Buxton v. Cornish, 12 M. & W. 426,† and Strother v. Barr, 5 Bingh. 136 (E. C. L. R. vol. 15), 2 M. & P. 207, that the agreement under which the defendant held the farm under Lord Sydney having been made an essential part of the contract declared on, its non-production was a ground of nonsuit, inasmuch as the Court and jury had not before them the whole materials for assessing the damages for the alleged breach. [WILLIAMS, J.-The plaintiff does not complain of the breach of any of the terms of the agreement referred to, but that the defendant altogether refused to transfer the farm to him.]

Shee, Serjt., and Sharpe, then proceeded to show *cause against

*373] the second rule. The defendant is clearly entitled to retain his verdict on the second plea, which in substance alleges that the agreement declared on was made subject to the condition that it should be null and void if Lord Sydney should not within a reasonable time after the making of the agreement consent and agree to the transfer of the defendant's farm to the plaintiff, and that Lord Sydney refused his consent. Both parties were aware that the consent of Lord Sydney was necessary. The proof of that fact was not an attempt to vary in any way the effect of the written contract,-for inasmuch as it related to the transfer of land, it must necessarily have been in writing: it showed that the contract was never to come into operation as a contract at all, unless that condition precedent were complied with. In Davis v. Jones, 17 C. B. 625, it was held that parol evidence was admissible to show that a written contract which had no date was not intended to operate from its delivery, but from a future uncertain period: and Jervis, C. J., said: "It was perfectly competent to the plaintiff, the agreement being silent on the subject,-to show by parol testimony that it was not intended to take effect until the happening of something else." And Crowder, J., said: "I think it is quite impossible to contend, after the decision in Murray v. The Earl of Stair, 2 B. & C. 82 (E. C. L. R. vol. 9), 3 D. & R. 278 (E. C. L. R. vol. 16), that the plaintiff might not show that the agreement, though signed by her, was not to be operative until something else was done. Morris proved that it was agreed between himself and the plaintiff at the time that the rent was not to commence until the date was filled in, and that the date was not to be inserted until the completion of the repairs. The evidence was clearly admissible." That case was followed by Pym v. Campbell, 6 Ellis & B. 370 (E. C. L. R. vol. 88), where it was held that *evidence was admissible to show that *374] an instrument (in writing) was not intended to operate as an agreement between the parties until a third party had approved of it. It is impossible to distinguish those cases from the present.

Huddleston, Q. C., and Holl, in support of the rule.--The authority of Davis v. Jones and Pym v. Campbell is not disputed: the only question is whether the matter sought to be introduced by extraneous evidence was a condition precedent or a defeasance. You may always show by parol evidence that an instrument executed between the parties was not meant to operate as an agreement until the happening of a given condition: but you cannot show by parol that the agree ment is to be defeated on the happening of a given event. In the two cases relied on, there never was any perfect agreement at all. Cur, adv. vult.

ERLE, C. J., now delivered the judgment of the Court:(a)— In this case, at the time when the parties made a written agreement to assign a farm, with immediate possession, there was an oral agreement that the written agreement was to be void if Lord Sydney, the landlord, did not consent to the assignment. In an action for not assigning, the pleas were,-first, non assumpsit,-and, secondly, the oral agreement, and that Lord Sydney did not consent. The jury found that Lord Sydney did not consent, and that the oral agreement was made: thereupon, the question has been, whether *the evi[*375 dence was admissible. If it was, both pleas ought to be found for the defendant, and there would be no judgment non obstante veredicto on the second plea.

We are of opinion that it was admissible. In Pym v. Campbell, 6 Ellis & B. 370 (E. C. L. R. vol. 88), and Davis v. Jones, 17 C. B. 625 (E. C. L. R. vol. 84), it was decided that an oral agreement to the same effect as that relied on by the defendant might be admitted, without infringing the rule that a contemporaneous oral agreement is not admissible to vary or contradict a written agreement. It is in analogy with the delivery of a deed as an escrow: it neither varies nor contradiets the writing, but suspends the commencement of the obligation.

It was contended for the plaintiff that the present case could be distinguished from those cited, on the ground that the intention here was that the written agreement should take some effect, but should be liable to be defeated if the event mentioned in the oral agreement happened. The stipulation for immediate possession, and the facts that money was paid by the plaintiff, and a cow sold by the plaintiff, in part execution of the agreement, were relied on to show that the oral agreement was a defeasance merely, and, if so, it would be in contradiction of the written agreement, which was in terms absolute. But this is a question of fact: and we think there is evidence that the fact is not so. The evidence shows that the defendant introduced the oral agreement for his benefit, and has treated the written agreement as suspended, having always retained possession of his farm. Also the subject-matter of the two agreements is strong to show that the oral suspended the written agreement from the beginning, and was not in defeasance of it; for, the written agreement was to assign, but the possibility of assigning was supposed to *depend on [*376 Lord Sydney's consent; and the oral agreement that the written agreement should be void if he did not consent, is in its nature a condition precedent: the defendant in effect says, "If I have the power

(a) The case was argued before Erle, C. J., Williams, J., Byles, J., and Keating, J.

to act, I will agree; but if I have no power to act, I make no agreement at all."

On these grounds we think that the verdict for the defendant on the second plea should stand, and the rule for judgment non obstante veredicto be discharged.

We also think that this evidence would have entitled the defendant to a verdict on non assumpsit.

We also think that the rule to enter the verdict for the defendant, on non assumpsit, by reason of the non-production of the lease by Lord Sydney, should be discharged.

According to our construction, the parties agree to assign a lease, to be held on the terms of Lord Sydney's lease, not to assign in a particular manner, to be ascertained by the terms of that lease. The agreement is set out in the declaration in its literal terms, and might be performed literally by an assignment in the terms of the agreement, without producing Lord Sydney's lease.

If, upon examination, it should appear that the pleadings require amendment, the Court amends according to the evidence and on consideration of the effect of it. Rules accordingly.

Parol evidence that a written agree- missible: Butler v. Smith, 35 Miss. ment was not to be binding until other (6 George) 457. signatures had been obtained, is ad

*377]

*BRADLAUGH v. EDWARDS. Nov. 5.

It is no ground for a new trial, that, the plaintiff having been asked while under crossexamination whether he was the author of a certain pamphlet which contained expressions of opinion on religious subjects altogether at variance with those generally received amongst Christians, and having declined to answer on the ground that his answer in the affirmative might subject him to a criminal prosecution, the counsel for the defendant was permitted for a considerable time (obviously with a view to prejudice the plaintiff with the jury), to read various passages of a similar tendency from other printed documents, each time repeating the inquiry whether the plaintiff was the author or whether the passage read expressed his notions on the subject, the jury being entitled to have before them all the facts and circumstances from which they might be enabled to judge of the degree of credit due to the party as a witness.

Nor is it a ground for a new trial, in an action for an assault and false imprisonment, that the plaintiff had incurred an expense of 71. 14s. in procuring his discharge from custody, and the jury have awarded him a farthing only.

THIS was an action for an assault and false imprisonment. Plea, not guilty by statute,-the statutes referred to in the margin being the 2 & 3 Vict. c. 93, and 3 & 4 Vict. c. 88.

The cause was tried before Channell, B., at the last Summer Assizes at Exeter. The circumstances out of which the action arose were these:The plaintiff, a gentleman who professes the most extreme latitude of opinion on theological subjects, in the month of February last, hired a field in the neighbourhood of Devonport for the purpose of delivering lectures there. The hiring (for which he paid 10s.) was under an unstamped written agreement (in the form of a receipt), which was signed by Mrs. Tozer, the wife of the owner of the field, in his name, and was for the use of the field for two meetings. The

plaintiff, having thus hired the field, publicly announced his intention to deliver an address, but the announcement was silent as to its subject. The defendant, who is the superintendent of the Devonport constabulary, anticipating from what he knew of the plaintiff's principles, that the lecture he was about to deliver would be of an objectionable character, took upon himself, without (as he alleged) instructions from any one, to go to the owner of the field, and to use his influence with him to rescind the agreement which his wife had made with the plaintiff. In this he so far succeeded that the owner, after the first attempt of the plaintiff to lecture there, *served him with a notice requiring him to desist from coming there again.

[*378 At the time appointed for the delivery of the first lecture, a considerable number of persons had assembled, when the plaintiff, addressing them, said: "I am about to address you on the Bible." No sooner had he uttered these words, than the defendant, accompanied by five or six constables, stepped forward, and desired him to desist; and, on his refusal to comply with this command, the plaintiff was forcibly removed from the field, and subsequently taken to the policestation, where he was detained without bail until the following morning upon a charge of assaulting the superintendent (the now defendant), which charge the magistrates on a full investigation, occupying two days, found to be altogether groundless.

The plaintiff was put to an expense of 77. 14s. in procuring bail before the magistrates, and in getting together evidence to establish his defence.

The plaintiff put in the receipt signed by Mrs. Tozer, but the learned Judge rejected it, as immaterial to the matter in issue.

The plaintiff having been examined in chief by Collier, Q. C. (who with Cole conducted his case at the trial), was examined at great length by Montague Smith, Q. C., who with a view to discredit him with the jury, sought to elicit from him that he entertained and had in various writings promulgated doctrines at variance with the opinions commonly received amongst Christians. The learned counsel produced a pamphlet which contained much of this objectionable matter, and asked the plaintiff if he was the author of it. The plaintiff declined to answer the question, on the ground, that, if he answered it in the affirmative, he might subject himself to a criminal prosecution under the statute 1 W. & M. c. 18. The learned Judge ruled *that he was not bound to answer. The defendant's counsel [*379 then proceeded to read twelve or fourteen other passages from the same pamphlet, asking the plaintiff at the end of each (with the like result) whether or not that was written by him and expressed his sentiments. This course of proceeding was strenuously objected to by the plaintiff's counsel, as being obviously intended and calculated to excite a prejudice against him in the minds of the jury. The learned Judge, however, did not interfere to prevent this repetition of the question: but he told the jury that they must not permit themselves to be influenced by it.

The learned Baron, in leaving to the case to the jury, began by observing that the doctrines entertained by the plaintiff and those who thought with him were much to be deplored; for that, although in strictness there was no evidence before them upon the subject, there

could be no doubt as to the tendency and character of the lecture about to be delivered. He further told them that the defendant in his character of constable had a right to be in the field: and he left it to them to say whether or not there had been any assault committed by the plaintiff, or, in other words, whether the defendant had made out his justification.

The jury returned a verdict for the plaintiff, damages one farthing. Mr. Bradlaugh, in person, on a former day in this term, moved for a rule nisi for a new trial, on the grounds.-first, that evidence was improperly rejected, secondly, that evidence was improperly admitted, thirdly, that the learned Judge misdirected the jury,— fourthly, that the verdict was against the evidence, and perverse, and the damages inadequate.

The first point, the rejection of the memorandum under which the *380] plaintiff had hired the field, was not *much pressed. As to the second point, it was strongly urged that the whole course of the cross-examination, and the perseverance of the defendant's counsel in the questions as to the plaintiff's presumed authorship of the pamphlet, should have been discountenanced by the learned Judge, inasmuch as its only object could be (and, as the result showed, evidently must be) to prejudice the plaintiff and discredit him in the eyes of the jury. [KEATING, J.-The Judge could do no more than caution the jury to dismiss that matter from their minds.] The caution was idle when the counsel was permitted to continue reading the several passages and repeating the question. Then, the summing up of the learned Judge was eminently calculated to divert the attention of the jury from the issue they had to try. The question being whether the assault and false imprisonment of the plaintiff were justi fied by the circumstances and the position of the defendant, the doctrines entertained by the plaintiff, assuming that there was any evidence on the subject before them,-ought not to have been paraded before the jury in the way they were, with the expression of a judicial opinion that those doctrines were to be deplored as subversive of the best interests of society. The whole course of the summing up showed the impropriety of allowing the cross-examination which took place. The learned Judge was also wrong in telling the jury that the defendant as a police constable had a right to be present at the meeting. He might by reason of the invitation held out by the announcement of the meeting have been entitled to be there in his private capacity; but he had no duty as a constable to be there, unless there was reasonable cause for apprehending a breach of the peace. The verdict evidently was not the result of a deliberate exercise of judgment and discretion on the part of the jury, but was plainly influenced by the unfair mode in which the trial was conducted, and the erro*381] neous ruling of the learned Judge. As to the damages, the verdict was manifestly perverse, the plaintiff having proved that he necessarily expended 77. 14s., and the jury having awarded him by way of compensation for that loss, as well as for the inconvenience and indignity to which he was unlawfully subjected, only one farthing. ERLE, C. J.-We will speak to my Brother Channell before we decide whether the rule should go or not. Cur, adv. vult. ERLE, C. J., now delivered the judgment of the Court.-In this case