the plaintiff in person moved for a rule to show cause why there should not be a new trial, on several grounds. It appeared that the plaintiff, having hired a field for the purpose in the neighbourhood of Plymouth, was proceeding to deliver an address, when the defendant, the superintendent of the Devonport constabulary, interposed to prevent it, and took the plaintiff into custody for an alleged assault, and caused him to be conveyed to the police station, and thence before certain justices, who, after a lengthened investigation, decided that the charge was unfounded, and dismissed the plaintiff. The two questions before the jury were,-first, whether there was any justification for the assault and imprisonment, secondly, what damages the plaintiff was entitled to. The jury found that there was no justification: the only question, therefore, which remained for them was, what damage the plaintiff had sustained. The jury estimated that damage at one farthing. The main complaint now is, that there was a miscarriage on the part of the learned Judge, in several respects. In the first place, it is said that he failed in his duty in not properly controlling *the learned counsel for the defendant in [*382 his mode of conducting the cross-examination of the plaintiff. The complaint made is, that the counsel, producing a certain pamphlet, asked the plaintiff if he was the author of it; and, upon his declining to answer the question, upon the ground that his admission of the authorship might render him liable to a criminal prosecution, and the learned Judge ruling that he was not bound to answer, the counsel proceeded to read several portions of the pamphlet, repeating after each the question as to the plaintiff's being the writer, which the latter each time on the same ground declined to answer, thus, it is contended, by a circuitous mode obtaining what was tantamount to an admission on the part of the plaintiff that he was the author, and so exciting undue prejudice against him in the minds of the jury. We learn from my Brother Channell, who, in order that he might accurately inform us of what passed, has referred to his notes, that the plaintiff is under some misapprehension on the subject. The learned Judge reports to us that the course at the trial was this:-The plaintiff having declined to say whether or not he was the author of the pamphlet produced, and the Judge having ruled that he was not bound to answer, Mr. Smith read a certain letter (which probably formed part of the contents of the pamphlet), and asked the plaintiff' whether he was the writer of that letter. And so of the other questions, each relating to a distinct and different document; so that it was not, as was represented by the plaintiff on moving, repeating the question as to the authorship after reading several passages from the same book or document, as to the whole of which the plaintiff had protected himself by his first refusal. Taking that as the report of the learned Judge, we hold that the first ground upon which this application rests fails in point of fact. *Although I am of opinion that the presiding Judge has the duty, as was con- [*383

tended by the plaintiff, of controlling the counsel where they for the purpose of prejudicing a party with the jury, or for any other purpose, persevere in putting questions which the Judge has ruled to be improper, or which the witness is not by law compellable to answer, I am by no means clear that a mistake made by the Judge in the

exercise of his discretion in that respect would afford ground for a new trial. That point, however, for the reasons I have already stated, does not arise upon the present occasion.

The second ground of complaint was, that the learned Judge commenced his summing up by deploring the opinions professed by the plaintiff, as being subversive of the best interests of society, and so materially prejudiced the minds of the jury against him. The report made to us by the learned Judge disposes of this ground of objection also; for, he tells us that he commenced by telling the jury, that, however much he and the jury might deplore the existence of doctrines and opinions such as those to which allusion had been made. they must endeavour to dismiss them from their minds, and keep their attention fixed solely upon the evidence, and give their verdict according to the truth and justice of the case. There is therefore no pretence for saying that the plaintiff sustained any prejudice from the manner in which the case was left to the jury. The learned Judg tells us that the defendant's counsel in his address commented freely upon the evil tendency of the doctrines which the plaintiff was assumed to entertain; and that the remarks which fell from him were intended to recall the attention of the jury to the issues which they had to try, and that he did so as clearly and distinctly and impartially as his faculties permitted him to do: and the jury upon the conflict of evidence before them came to the conclusion they

*384] did.

The next ground of complaint was that the plaintiff did not have an impartial trial: the defence having been conducted at the expense of the borough fund, and many of the jury being in all probability contributors to that fund. We have, however, no information in a legal shape that any of the jurors were in point of fact contributors to the borough fund, or that any of them came from the borough of Devonport. That ground of complaint, therefore, also entirely fails.

The last ground of the motion was, the inadequacy of the damages, the jury having awarded the plaintiff only a farthing by way of compensation for his detention for several hours at the police station, when the expense actually incurred by him in defending himself and obtaining his release from that unfounded charge was 77. 14s. Now, if I saw clearly that there had been anything like an intentional violation of right or duty on the part of the jury, I should think it a fit case for the interference of the Court. But, unless that was very clearly made out, I should be extremely scrupulous to enter into any discussion as to the amount of damages, which is entirely a matter for their consideration. Where a party has been illegally imprisoned, and has been put to expense in procuring his discharge, he may very well urge that fact before the jury as an aggravation: but he has no right to demand to be reimbursed ex debito justitiæ. It is in the discretion of the jury to give him such damages as they may consider a sufficient compensation for the wrong the party has sustained, irrespective of any expense he may, perhaps needlessly, have incurred in his defence. I am altogether unaware of the nature of the plaintiff's religious opinions and belief: but I do know that *some men pro*385] fess to entertain notions and opinions the dissemination of which the law holds to be a crime, and which men of sound and well

regulated minds would generally esteem to be erroneous and pernicious; and, if they thought the plaintiff was about to give utterance to opinions such as those hinted at on the trial, it may be that the jury considered that a very small compensation was due to him for preventing him from doing that which he himself might afterwards have deeply regretted, and therefore that the injury he had sustained by the short imprisonment he endured was one for which a large sum ought not to be paid, but, on the contrary, was in the result a substantial benefit to the plaintiff, and therefore amply compensated by the small sum they have awarded him. Upon the whole, I am not satisfied that wrong has been done, and therefore am not disposed to interfere.

WILLIAMS, J.-I entirely agree with what has fallen from my Lord, and would only add, with reference to the contention of the plaintiff' that he ought at all events to have had a verdict for the amount of the expenses incurred by him in his defence before the magistrates, that he had no more right to recover those expenses than a plaintiff in an action for an assault has to recover the amount of the surgeon's bill for the dressing of his wounds. It is a matter which the jury may take into their consideration, but that is all.

BYLES, J.-I am of the same opinion. By the law of England, a man has an undoubted right to hold what opinions he pleases. But, as my Lord has observed, there are persons who profess opinions which strike at the very root of all public and private order and *morality, and the dissemination of which is more mischievous [*386 than almost any act that can be committed. To publish these is a crime justly punishable by the law. I wish also to add a word as, to the power and the duty of the Judge to prevent the reiteration of irrelevant questions. I apprehend the rule to be this,--that, when a question is put with a view to discredit a witness, the Judge has no right to interpose merely because it is not relevant to the matter in controversy between the parties; but that, when the question is neither relevant to the matter in controversy nor to the character and credit of the witness as such, the Judge has a perfect right to prevent such question from being put. If it were not so, every man who enters the witness-box would be exposed as in a kind of moral pillory, to public odium, contempt, and ridicule. But, like my Lord, I am not aware of any case in which a new trial has been moved for on the ground of the Judge having declined to exercise his discretion in this respect. This, therefore, being a mere application for a new trial on the ground of the inadequacy of the damages, in a case which was purely for the jury, I am of opinion that we ought not to interfere.

KEATING, J.-I agree with the rest of the Court in thinking that no rule ought to be granted in this case. With regard to the complaint that the defendant's counsel was allowed repeatedly to put questions for the purpose of endeavouring to elicit from the plaintiff the fact that he entertained peculiar opinions upon religious subjects,-it seems to me that it was highly important that the jury should be fully possessed of all the facts which could show what amount of credit was due to the witness. Though I fully agree that such a course of examination should not be carried to the *extent of persecution, yet

I think it right that the jury should have every opportunity, [*387

either from his answers or from his refusal to answer, of forming their own estimate of the credit due to him. Rule refused.(a)

(a) The plaintiff on a subsequent day asked for leave to appeal: but the Court were unanimously of opinion that the case was not a fit one for an appeal.

The Company of FREE FISHERS AND DREDGERS OF WHITSTABLE in the County of KENT v. GANN.

GANN v. JOHNSON and Others. June 2.

A grant by the Crown to a subject of the soil of the seashore below low-water mark, and of a toll for the anchorage of vessels there, may be presumed to have had a legal origin: and such a toll, if found to exist, may be enforced by distress.

By deeds of lease and release of the 11th and 12th October, 1791, the manor of Whitstable, and the royalty of fishery or oyster-dredging within the said manor, were conveyed to A. and B.

By deeds of lease and release of the 24th and 25th of October, 1792,-reciting, amongst other things, that, within the said manor of Whitstable, there is, and for many hundred years then last past had been, a fishery for the growth and improvement of oysters, extending from the sea-beach for a very considerable distance into the sea, managed by a company of freedredgers called "The Whitstable Company of Dredgers," the manor (proper) was limited to A. and two others, in fee, and "the royalty of fishery or oyster-dredging, and the right of taking oysters and other fish within the said manor, and the ground and soil of the said fishery, and also the customary payments usually and of right made to the lord of the said manor for or on account of the anchorage of any ship or vessel, or the landing of any goods or merchandise within the said manor," &c., to C., in fee, on behalf of the Company.

By an Act of 33 G. 3, c. 42, the Whitstable Company of Dredgers were incorporated by the name of "The Company of Free Fishers and Dredgers of Whitstable;" and, in pursuance of that Act, the fishery, and all rights appertaining thereto, were by deeds of lease and release of the 4th and 5th of June, 1793, conveyed to the Company.

It appeared in evidence that the oyster fishery extended about two miles from the shore, and far below the ordinary low-water mark; and that the Company and those under whom they claimed had so far back as the year 1775 claimed a toll of 18. from every vessel anchoring or grounding within the space covered by their conveyance; and three instances were proved of the claim having been enforced by distress from vessels anchoring on the oyster-ground below low-water mark, when resisted,-there being no evidence to show that the claim had ever been resisted without recourse being had to a distress :

Held, that, it being competent to the Crown to grant the soil of the seashore and the right to anchorage, the evidence was sufficient to justify the presumption of a grant having a legal origin; that the right of distress was incident to the right to the anchorage; and that the right to the anchorage was not destroyed by the severance of the marine from the terrestrial part of the manor.

THE first of these was an action brought by the plaintiffs, a company incorporated by the 33 G. 3, c. 42, under the name of "The Company of Free Fishers *and Dredgers of Whitstable, in the *388] county of Kent," to try their right to receive a payment of ls. for every vessel anchoring on certain land covered by the sea, the soil of which was claimed by the plaintiffs.

The declaration was in the indebitatus form for anchorage. The defendant pleaded never indebted.

The cause was tried before Erle, C. J., at the last Spring Assizes at Maidstone, when a verdict was found for the plaintiffs, leave being reserved to the defendant to move to enter the verdict for him if the Court should be in his favour upon the points hereinafter mentioned,– both parties undertaking to be bound by the decision of the Court thereon, unless the Court should give leave to appeal, and to appeal

on those points only on which the Court should so give leave. The evidence given at the trial was in substance as follows:

By deeds of lease and release, bearing date respectively the 11th and 12th of October, 1791, the fee simple of the manor of Whitstable, &c., were conveyed to Edward Foad and James Smith in equal moieties as tenants in common in fee. The following is an extract from the conveying part of the deed of release:-"All that the manor of Whitstable, with all and singular the rights, royalties, privileges, members, and appurtenances thereof, in the said county of Kent; and also all courts. leet, courts-baron, perquisites and profits of Courts, to the same belonging or in any wise appertaining: And also all those quit-rents payable yearly to the said manor by several persons, formerly said to amount to the sum of 137. 18s., but now to the sum of 177. 16s. per

annum:

"And also all the fishery of Whitstable, being a royalty of fishery or oyster-dredging within the said manor, formerly computed to be of the yearly value of 231. 4s., but now of 761. 15s. 2d. per annum, on an average for the last seven years; together with all and [*389 singular messuages, houses, outhouses, buildings, dove-houses, barns, stables, mills, tofts, yards, orchards, gardens, lands, tenements, meadowes, leasowes, pastures, feedings, closes, enclosures, woods, underwoods, trees, rents and services of tenants and farmers, quit-rents, free-rents, rents of assize, ways, paths, passages, waters, streams, fishings, fishing-places, watercourses, ponds, pools, moats, warrens, wastes, waste-grounds, commons, common of pasture, furzes, heaths, moors, marshes, courts-leet, courts-baron, views of frankpledge, perquisites and profits of courts and leets, homages, fealties, reliefs, heriots, escheats, fines, issues, amerciaments, goods and chattels of felons and fugitives and of persons attainted and of persons outlawed and put in exigent, deodands, waifs, estrays, treasure-trove, fines, forfeitures, mines, quarries, and all other royalties, franchises, liberties, rights, jurisdictions, privileges, immunities, profits, commodities, emoluments, advantages, and hereditaments whatsoever to the said manor, royalty, and fishery, hereditaments, and premises hereby granted and released, or intended so to be, or any of them, belonging or in anywise appertaining, or therewith held, used, occupied, or enjoyed, or accepted, reputed, taken, or known as part, parcel, or member thereof, or to be had, received, perceived, or taken, used, exercised, or enjoyed in, upon, or out of, or arising from the same manor or lordship, royalty, and fishery, hereditaments, and premises, or any of them, or any part or parcel thereof."

By deeds of lease and release bearing date respectively the 24th and 25th of October, 1792, it was, amongst other things, recited and limited as follows:

"And whereas, within the limits of the said manor of Whitstable, there is, and for many hundred years *now last past hath been, [*390 a fishery for the growth and improvement of oysters, extending from the sea-beach for a very considerable distance into the sea, and which fishery during all that time hath been managed and carried on by and at the expense of a certain company of free dredgers, called The Whitstable Company of Dredgers, who have held the same from time to time as tenants under the lord of the said manor, and claim to C. B. N. S., VOL. XI.—16