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Indictment for obstructing a highway, charging, "that

defendant re

moved a culvert in the pa

rish of S., opposite to a mill

The KING V. ROBERT, KNIGHT, Esq. and others. INDICTMENT for obstructing a highway, stated, that defendants, on the 27th December, in the seventh year the reign, &c., with force and arms, unlawfully and injuriously did dig, stock up, and remove, and caused to be dug, stocked up, and removed, the gravel, soil, and rubbish, then being upon and over a certain brick culvert, for the convenience of his Majesty's liege subjects passing there, in a highthere along, in the parish of Studley, in the county of leading from Warwick, opposite to a certain mill there, called Studley good, on moMill, in a certain King's common highway, there leading tion in arrest of judgment. from Studley, in the said county of Warwick, to Henley in Arden, in the said county, &c. Plea, not guilty. At the trial before Lord Tenterden, C. J., at the last Warwickshire assizes, the defendants were found guilty.

Denman, C. S., now moved for a rule to shew cause why the judgment should not be arrested, upon the ground that the description, in the indictment, of the road alleged to have been obstructed, was repugnant and bad. The allegation is, that the defendants removed a culvert in the parish of Studley, in the county of Warwick, opposite a mill in a highway there, leading from Studley to Henley, in the same county; which is certainly not a direct allegation that the highway in question is in the parish of Studley, and county of Warwick, nor even is that inference necessarily deducible from it. The only positive description of the highway is, that it leads from Studley to Henley; now, from and to are both words of exclusion, Rex v. Gamlingay (a). The result, therefore, is, that the highway is in neither of the parishes mentioned, but lies between, but out of, both of them. The case cited seems quite decisive of the point, for it was there held, that an indictment against the parish of B., for not repairing a road leading from A. to B. was exclusive of B., and therefore bad. And further, that it was not aided by a subse(a) 3 T. R. 513.

way

S. to H." Held

1827.

REX

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KNIGHT.

quent allegation that a certain part of the same highway, situate in B., was in decay. The same rule of construction had been previously applied to an act of parliament, in the case of Hammond v. Brewer (a). That case arose upon a clause in a turnpike act (b), which gave directions for repairing the road to and from the town of Battle; the only question was, whether the act was intended to include or exclude the town of Battle itself: and the Court were clear that the act of parliament was intended to exclude the town of Battle. Both those decisions seem to have been founded upon an authority in 2 Rol. Abr. (c), where it is said, "if A. is indicted for stopping up a way at D., leading from D. to S., it is not good, because it does not allege the way to be in D., but to lead from D., which excludes the vill. And in M. 21 Car. I., such an indictment was quashed." Upon these authorities it is submitted that this indictment is bad, and that the judgment upon it ought to be arrested.

Lord TENTERDEN, C. J.-The indictment in Rex v. Gamlingay was very different from the indictment in this case. The only description of the road there was, that it was a road leading from the parish of A. to the parish of B. Here we have much more, because the allegation is, that the defendants committed an obstruction in the parish of S., opposite to a mill there, in a highway there, leading from S. to H. To construe the words "to" and " from,” in that sentence exclusively, would be to render insensible and absurd, that which is otherwise sensible and intelligible and why should we go out of our way to produce such a result? If the defendants, in the parish of S., have obstructed a highway, they are guilty upon this indictment, and I think there is an abundantly plain allegation of their having done so. In common parlance and acceptation, the words "to" and "from" have, very frequently, an inclusive meaning(d); and I am by no means

(a) 1 Burr. 376.
(b) 26 Geo. 2, c. 54.

(c) Indictment (M) pl. 19.
(d) Cowp. 717, acc.

satisfied with the general rule laid down in Rex v. Gamlingay(a), that they ought to be construed exclusively. The case in Burrow is also very different from the present. The object of the act there, was to impose a toll. Many of the clauses described the roads as leading from, to, and through towns; but the clause in question omitted the word through. Lord Mansfield observed, that it was neither usual nor convenient to erect toll gates in the middle of great towns, which the commissioners under the act had done and upon those grounds the decision of that case clearly proceeded. For these reasons, I am of opinion that this indictment may be supported.

BAYLEY, J.-I am of the same opinion. The objection in Rex v. Gamlingay was, that it did not appear from any thing stated in the indictment, that any part of the road was in the indicted parish, because the first allegation that the road led from A. to B., was clearly bad in that respect, and the second allegation, that part of the same road, situate in B., was in decay, referred back to the first, and therefore could not aid it; for both plainly alluded to one and the same road. And even there Lord Kenyon appears to have yielded to the objection with regret, and rather from the idea that he was bound by the authority in Rolle's Abridgment (b), than from his own conviction of the validity of the objection. Here, however, the objection does not apply; for there is in this indictment, a very sufficient allegation that the defendants have obstructed a road in the parish of Studley.

The other Judges concurred.

(a) 3 T. R. 513.

(b) And see Halsey's case, Latch, 183. Halsey was indicted "quod apud Kensington cum quodam muro coctili obstupavit altam viam regiam ducentem de London ad Kensington; and the indictment was quashed by Jones and Whitlocke, (absente Doderidge), because the

Rule refused.

stopping is alleged at Kensington,
but the way is alleged to be from
and to K., so there K. is excluded.
As a lease for three years, from
Michaelmas excludes Michaelmas.
At another day, another indict-
ment was reversed for the same
cause, by Doderidge and Whit-
locke."

1827.

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KNIGHT.

man enters up

on a party in possession by intrusion (a). Held, that trespass lies against the intruder, although he retain the

actual possession.

GEORGE BUTCHER V. JOHN BUTCHER.
7BK 399

A remainder TRESPASS for breaking and entering a close of the plaintiff, called Hill close ground, and a certain other close, situate, &c., at Maidmorton, in the county of Bucks, and breaking gates, feeding with cattle, damaging soil with horses and carriages, cutting down trees, and carrying away branches. Plea, not guilty. And as to the second close, lib. ten. of defendant. The replication took issue on the plea. At the trial before Garrow, B., at the last assizes for the county of Bucks (b), it appeared, that the plaintiff was the elder brother of the defendant; that on the 10th of August, 1761, George Butcher, the father of the plaintiff and defendant, was admitted tenant of a copyhold messuage and land, comprising Hill close ground, habendum, to him the said George Butcher, the elder, William Scott Butcher, his second son, and George Butcher, his eldest son (plaintiff), for the term of their lives, and the life of the survivor and survivors of them successively. In January, 1807, George Butcher, the elder, died. William Scott Butcher, the second son, remained in possession of the locus in quo, from the time of the death of George Butcher, the elder, till his own death in January, 1827. William Scott Butcher, by his will, dated 22d December, 1826, devised the locus in quo to John Butcher, the defendant, in fee, and appointed him sole executor of his will. On the death of the testator, the defendant entered into possession as devisee under the said will, but on the 10th March last, the plaintiff and his men cut asunder the chain which fastened the gate of the close in question, and entered thereon, and began to plough and sow the field, whereupon, defendant ordered plaintiff's men out of the close, aud on their refusing to go out, he cut part of the gear of the plaintiff's horses. Verdict for the plaintiff, with leave to move to set aside the verdict, and enter a nonsuit.

(a) F. N. B. 204 D.
Storks, Serj, and F. Kelly; for the
(b) Counsel for the plaintiff, defendant, Robinson, and Munro.

Robinson, for the defendant, now moved accordingly. It must be admitted, that the plaintiff was the rightful owner of the close in question, William Scott Butcher having no right to devise to the defendant, inasmuch as he had only a life estate in the premises; but the plaintiff, by virtue of the entry, had not such a possession as would enable him to maintain trespass. For that purpose, it was necessary that the plaintiff should have actual (a) and exclusive possession (b). Here the entry of the plaintiff not being acquiesced in by the defendant, the plaintiff had not obtained such possession.

Lord TENTERDEN, C. J.-There is no doubt, that if he who has the right enters, he can maintain trespass. Formerly, trespass was brought to try title (c); and the mere circumstance of the plaintiff's going upon the land and using it, is an entry, although he says nothing (d). The other Judges concurring,

(a) Vide 2 Roll. Abr. 553; Com. Dig. Trespass, (B).

(b) Vide Wilson v. Mackreth, 3 Burr. 1824; Smith v. Milles, 1 T. R. 480; Wiltshire v. Sidford, post.

(c) Ejectment is founded upon a right to enter, and make the demise to the nominal lessee. Whoever, therefore, can maintain ejectment, may enter peaceably without action; and upon such entry the legal possession vests with relation to the period at which the title of the party accrued; so that he may now sue for the mesne trespasses; which brings the right of possession, and the lawfulness of the entry directly in question. Thus to a plea of lib. ten. at the time of the alleged trespass, plaintiff replied that his father had been disseised by defendant, and that he had since entered upon defendant. Bro. Tresp. pl. 80. Et vide ib. pl. 127, 169, 187, 202, 227, 367, 423; Jayson v. Rash, 1 Salk. 209; Rogers v. Pitcher, 6 Taunt. 202, 7; 1 Marsh, 542. So where

Rule refused (e).

A. having forfeited for treason,
made a gift in tail, and after the
death of the donee, A. was restored
by act of parliament: this con-
structive seisin of the donee was
held sufficient to entitle his wife
to dower. Arundel v. Willington,
T. 9, E. 3, fo. 24, pl. 17. The
common action of trespass for
mesne profits, after an hab. fac.
poss., is founded upon this prin-
ciple; and if the plaintiff claims
to be remitted to a constructive
possession anterior to the demise
in ejectment, so that he can no
longer avail himself of the estoppel
created by the judgment in eject-
ment, he raises the question of
title in the old way.

59.

(d) Co. Litt. 245 b.; 3 Tho. C.L.

(e) And see Taunton v. Costar, 7 T. R. 431; Turner v. Meymott, 1 Bingh. 158; 7 J. B. Moore, 574, S. C.; Girdlestone v. Porter, Woodf. 542; Nowell v. Roake, ante, 170.

1827.

BUTCHER

บ.

BUTCHER.

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