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1806.

WELD

versus

HORNBY.

defendant, although they thought that what the defendant had done was an injury to the plaintiff, yet they thought he had a right to do it from the usage and possession.

COCKELL, Serj. for the plaintiff, obtained a rule to shew cause why there should not be a new trial, and contended, that the plaintiff's right was not barred by the defendant's possession; because until the year 1784, the plaintiff had no right of action against the defen dant, the fish passing up the river during the continuance of the wear, consisting partly of stone and partly of brush-wood,with as much facility as they did before, through the ancient wear of brushwood. The injury therefore commenced in 1784, and 20 years not having elapsed before the bringing of the action, he was not barred by the length of the defendant's possession, and the period of his submission to it,

TOPPING, was heard contrà, and the whole of their controversy consisted in arguing upon the evidence and the model of the wear and the trap, whether or not the plaintiff's fishery was injured more by the present wear than by the former one of stone and brushwood. And for the plaintiff, the stat. 2 H. VI. c. 17, was cited, which enacts that no person may fasten nets across rivers to disturb fish, and disturb the passage of vessels on pain of forfeiting 51.

Lord ELLEN BOROUGH, C. J. "On this subject the legislature has always evinced a proper jealousy for the rights and interests of the subjects in general. In the stat. 1 Geo. 1. c. 18,* all persons are forbidden from setting any thing across the river whereby the salmon may be hindered from passing up to spawn, and by Magna Charta,† all the wears form the time to

*This is altered as to the river Ribble by stat. 23 Geo. II. c. 16.
ts. 14.
Artic. 39.

come shall be destroyed in the rivers of Thames and Medway, and throughout all England, except upon the sea-coast. And I believe there does not exist in Great Britain, a single undisputed wear, in any river built entirely across the river. In a case which I happen to know, and which occurred with respect to a river between England and Scotland, it was not permitted to be contended for, until there was some compromise by which the parties were satisfied. I happen also to know from my attendance in another place, that the laws of Scotland which are pretty full upon this subject, correspond nearly with the article in Magna Charta. At the Eden where the corporation of Carlisle and Lord Lonsdale have stells for the catching of fish, it was held that the keeping of them close day and night was a public nuisance; and Lord Kenyon said, no man can claim an estate in a public nuisance. When Buller, J. came to try that cause, be admitted evidence of usage however, thinking, that under certain restrictions these stells might be allowed by usage. There is much legal learning upon the subject of fishery in Mr. Hargrave's notes to Lord Coke's First Institute, 122, (a. n. 7). And Lord Coke himself says, these grants of fishery must be taken and may be good super possessionem et usum ; and that is the true way of taking it, for as to the meaning of these old charters and deeds they must be explained by the usage and the nature of the possession. Here it was clear, that within twenty years the public had always a right to the escape of some of the fish; but since that time, the defendant puts up a stubborn erection of stone which wholly precludes the passage of all fish. The brushwood wear necessarily lets a part of the fish through, and a fish is an animal which readily insinuates itself through a very small aperture, but this wear wholly stops the passage of all the fish."

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1806.

WELD

versus

HORNEY,

1806.

WELD

versus

HORNEY.

STEAD versus GAMBLE.

LAWRENCE, J. "It is clear that, at first the defendant claimed a right to part, and now he claims a right to the whole of the fish, and the jury have found that the erection of the stone wear was an injury to the plaintiff, who is not barred by the length of possession. RULE ABSOLUTE.

STEADagainst GAMBLE-11th February

A plaintiff having declared in trespass in a certain close for pulling up and burning 40 perches of hedge there standing and being, the defendant pleaded the general issue, and also a special plea that the hedge was erected on a common where he had right of common, and justified abating the same as a nuisance thereto; and the jury found for the defendant on the special plea, and for the plaintiff, damages 20s. on the general issue; held, that the plaintiff could not have full costs; the action being trespass, quare clausum fregit, in which the title to the land might have come in question, and the judge not having certified, the court could not look to the special plea, which was found for the defendant, to see that the title could not come in question.

THIS was a rule calling on the defendant to shew cause why the master should not tax the plaintiff his full costs. The plaintiff had declared in trespass that the defendant on the 18th April, 1805, at the parish of Leeds in the county of York, with force and arms threw down, pulled down, burnt, and consumed by fire, and totally destroyed a large quantity, to wit, 40 perches of a certain hedge or fence of the plaintiff's of great value, to wit of 1001, there then erected, standing, and being, whereby a certain close or piece of land of the plaintiff's, near to the said hedge or fence, in the parish aforesaid, called Long Close, otherwise the Great Close, was exposed to damage by cattle; and divers large quantities of corn, to wit, wheat, rye, oats, and barley of the plaintiff then growing and being

in the said close or parcel of land, of great value, to wit, of 101. were then and there damaged eaten, consumed, and destroyed by cattle; and other wrongs to the plaintiff then and there did to his damage of 1001. The defendant pleaded, first the general issue, not guilty, and secondly, that the hedge was wrongfully erected in a waste or common whereon the defendant had a right of common, and that the plaintiff having by means of the said hedge inclosed a part of the common, the defendant pulled down and destroyed the said hedge, &c.; and justified for abating the nuisance. The plaintiff replied, taking issue on the right of common. The jury found a verdict for the defendant on the special plea, and for the plaintiff on the general issue, damages 20s. costs 40s.

The judge did not certify that the freehold came in question, &c.

LAMBE. "By stat. 43 Eliz. c. 6, s. 20, in actions personal not being for the title to any lands, &c. nor for any battery, in which the judge shall certify the amount of the damages to be only 40s. the plaintiff can only have the same costs as damages. And by 22 and 23 Car. H. c. 9, s. 136, 'in all actions of trespass, assault, and battery, wherein the judge shall not certify that the battery was committed, nor the freehold or title of the land did come chiefly in question, the plaintiff shall have no more costs than damages.' But these statutes have always been construed with an exception of those cases in which no certificate could have been granted, or wherein from the nature of the pleadings that is admitted which alone the judge could have certified. Here, however, the special plea is found for the defendant, and, at the most, it did not go to the whole trespass. The case therefore, is left as if the special plea were not pleaded, and it stood only upon the general issue. And where there was an Kk

NO. XXX, N, S.

1806.

STEAD

versus

GAMBLE

1806.

SHEAD

GAMBLE.

action of trespass quare clausum fregit, and for other trespasses, and there was a plea not guilty as to the clausum fregit, and a justification as to the other trespasses, and the justification was found for the defendunt, and the trespass quare clausum fregit for the plaintiff, the court held it within the statute, and that there should be no more costs than damages.* In assault and battery there have been cases in which it is held that cither the battery must be admitted by the pleadings, or else must be certified; sce Page v.Creed, and Smith v. Edge. In the latter case there was a justification which went to the battery, and that being found against the defendant, the battery stood admitted. And in Adlin v. Greenaway, which was an action of trespass, for breaking certain panes of glass in the windows of al house, it was held that, as the defendant might have given libegum tenamentum in evidence, and the title might have come in question, it was within the sta

tute."

HULLOCK, contrà. "If it can be shewn that it was impossible for the judge to certify whether the title. to the soil was in question, or if it appear by the pleading that the title could not come in question, then the plaintiff is entitled to full costs; unless it falls within the 43 Eliz. c. 6, s. 2, and there might have been a certificate under that act of parliament. The 22 and 23 C. II. c. 9, s. 156, has always been construed to apply only to two cases, namely, to actions of trespass quare clausum fregit, and actions of assault and battery. Here the trespass was not quare clausum fregit, nor for an assault and battery, and the special plea went to deny the claim of the defendant to the soil, by merely shewing a right of common in the defendant."

#2 l'ent. 180. Anon. † 3 T. Rep. 391. ‡ 6 T. Rep. 562. § 6 Term Rep. 281.

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