i»06. defendant, although they thought that what the Wiin defendant had done was an injury to the plaintiff, yet vrrim they thought he had a right to do it from the usage and



Cockell, Serj. for the plaintiff\ obtained a rule to shew cause why there should not be a new trial, and contended, that the plaintiffs right was not barred by the defendant's possession ; because until the year 1784, the plaintiff had no right of action against the defendant, 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 we^r 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 contra, 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 5l.

Lord Ellen Borough, C. J. "On this subject the legislature has always evinced a proper jealousy for the rights arid 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 Churta,-f all the wears form the time to

[ocr errors]
[ocr errors]

come shall be destro}Ted in the rivers of Thames and isofl.
Medway, and throughout all England, except upon weid
the sea-coast. And 1 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, corres-
pond nearly with the article in Magna Charta. At the
Eden where the corporation of Carlisle and Lord Lons-
dale hare stelfs for the catching of fish, it was held thai
the keeping of them close day and night was a public
nuisance; and Lord Kenyan said, no man can claim
an estate in a public nuisance. When BuHer, J. came
10 try that cause,he admitted evidence of usage how-
ever, thinking, that under certain restrictions these
stel/s might be allowed by usage. There is much legal
learning upon the subject of fishery in Mr. Hargrove's
notes to Lord Coke's First Institute, 122, (a. n. 7).
And Lord Coke himself says, these grants of fish-
ery must be taken and may be good super possessi-
onem 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. Were it was clear, that within
twenty years the public had always a right to the es-
cape of some of the fish; but since that time, the de-
fendant puts up a stubborn erection of stone which
wholly precludes the passage of all fish. The brush-
wood 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."

t/AfrttfcNCE, J. "tt is clear that, at first the drferidant claimed aright lo part, and now Ire claims a right to fhe whole of the fisfh, and the jtiry hare found that the erection of the stone wear was an injury to the plaintiff, who is net barred by the length of possession.

Rule Absolute.

S'rEAnagainst 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 alto a special plea that the hedge was erected on a common where he had right of common, and justified abating the tame as a nuisance thereto; and the jury found/or the defendant on the special plea, and for the plaintiff, damages 20s. on the general issue; held, that the plaintiff could nut havefoil costs; the action being trespass, quare clansum fregit, in which the title to the land might have come in question, and the judge not hating certified, the court could not look to the special plea, which was found for the defendant, fe see that'Ihe title could not come in ijueslibn. Stud

vrnus 'JpHIS was a rule calling on the defendant to shew Jajiblk. cause why the master should not tax the plaintiff his full costs. The plaintiff had declared in trespass that the defendant on the 13th April, 1805, at the parish of Leedsin the couoty of lor&,.w.ith force and arms threw down, pulled down, burnt, and consumed by fire, and totally destroyed a large quantity, to wit, 40 perches of acertain hedgeor fenceof the plaintiffs of great value, to wit of 1001. there then erected, standing, and being, whereby a certain close or piece of land of the plaintiffs, near to the said hedgeor 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

[ocr errors]


in the 9aid closeor parcel of land, ofgreat'value, to wit, 1806. of 101. were then and there damaged eaten, consumed, Stead and destroyed by cattle; and other wrongs to the plaintiff" then and there did to bis damage of lOOl. 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, 8cc.; 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 batter)', 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. II. 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, theplaintiff shall have no more costs than damages.' But these statutes havealways 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 ouly< upon the general issue. And where there was an

wo. xxx. n.s. Kk

actio.i of trespass quart clausum Jregit, and for other trespasses, and there was a plea not guilty as to the clausum /regit, and a justification as to the other trespasses, and the justification was found for the defendant, and the trespass quart clausum/regit for the plaintiff, the court held it within the statute, and that there should be no more costs limn damages.* In assault and Latter)' there have been cases in which it is held that cither the battery must be admitted by the pleadings, or eNe must be certified; see Page v.Creed,f and Smith v. .Edgc.% 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. C/\i >i(Uia>/}§ which was,ap action of trespass, fur breaking certain panes of glass iu the windows of a bouse, it was held that, a< the defendant might have given Mitjpnn tcnametitum in evidence, and the title might have come in (question, it was within the statute."

Hillock, contrH. "If it can he shewn that it was impossible for the judge to certify whether the title tq the soil was in question, or if it appear by the pleading that the title could not come iu question, then the plaintiff is entitled to full costs; unless it falls within the 4.'i E/iz. c. G, s. 2, and there might have been a certificate under that act of parliament. The 2'2and 23 C.J/, c. {), s. ISG, has always been construed to apply only to two cases, namely, to actions of trespass quare clausum J regit, and actions of assault and battery. Here the trespass was not quare clausum /regit, nor for an assault and battery, and the special plea w ent to deny the claim of the de/endant to the soil, by merely .shewing a right of common in the defendant."

[ocr errors]
« ForrigeFortsett »