sure of da

value to the

Erch. of Pleas,

April 20.
In trespass for

was an action of trespass for digging and cutting the cutting into the plaintiff's close, plaintiff's close, and carrying away therefrom large quanand carrying

tities of earth, soil, &c. The defendant pleaded not guilty away the soil, the proper mea- (by statute). At the trial before Tindal, C. J., at the last mages is the

Suffolk Assizes, it appeared that the defendant, in his plaintiff of the character of commissioner under a local Paving Act for land removed, the town of Sudbury, had directed a certain ditch to be not the expense of restoring it widened, and in so doing had caused a strip of a field to its original condition. belonging to the plaintiff, adjoining the ditch, to be cut

and carried away; which was the trespass complained of. The Lord Chief Justice directed the jury to give such damages as they thought the plaintiff had sustained by the cutting into and carrying away of his land; and the jury found a verdict for the plaintiff, damages £5.

Kelly, for the plaintiff, now moved for a new trial on the ground of misdirection, contending that the learned Judge ought to have directed the jury that the plaintiff was entitled to such a sum, by way of damages, as would restore the land to the condition in which it was before the commission of the trespass.

Lord Abinger, C. B.-I think there is no ground for a rule. I cannot at all assent to the principle which has been contended for, that a person whose land has been cut into, and the soil carried away, is therefore entitled, by way of damages, to the amount which would be required to restore the land to its original condition. All that he is entitled to is to be compensated for the damage he has actually sustained.

ALDERSON, B.-I am of the same opinion. The plaintiff is entitled, by way of compensation, to what the land



was worth to him. If the principle for which Mr. Kelly con- Exch. of Pleas,

1841. tends were to be adopted, it would follow that a party who has let the sea in upon the land of another, the land itself being worth only £20, would have to pay, by way of damages, the expense of excluding it again by extensive engineering operations. The same argument, I remember, was urged in an action brought against the Regent's Canal Company : it was contended that they were bound to replace the soil they had taken away, or to pay such a sum in damages as would enable the plaintiff to do so. The jury, however, did not adopt that view of the case, and the Court refused to disturb their verdict.

[ocr errors]

Rolfe, B., concurred.

Rule refused.

the 1 & 2 Vict.

need not state

Willis v. SNOOK.

April 27. THE defendant in this case having been arrested by The atidavit in virtue of a capias issued upon a judge's order, under the application for a

support of an stat. 1 & 2 Vict. c. 110, s. 3, a rule had been obtained to capias, under shew cause why he should not be discharged out of custody, c. 110, s. 3, on the ground that the affidavits upon which the order that the depo

nent has probawas made did not sufficiently establish the fact that he lle cause for bewas about to leave the kingdom.

lieving that the
defendant is
about to quit

England; it is
Platt having shewed cause against the rule on the suficient if the

facts stated in merits,

the affidavit en

able the Judge Erle, in support of it, objected, that the defendant was belief. entitled to his discharge, on the ground that in the affidavits on which the order was made, none of the deponents stated that they had probable cause for believing that the defendant was about to leave the country in order to

to form that


Exch. of Pleas, avoid his creditors; and that a mere statement of circum1841.

stances, upon which such an inference was to be founded, WILLIS

was not sufficient. He likened it to the case of an appliSNOOK. cation for a criminal information, where a mere statement

of circumstances is not considered sufficient, but the Court requires that some person shall swear to his belief of the existence of the criminal intention imputed to the party against whom the application is made.

PER CURIAM.—Such an allegation is usually inserted in the affidavits on which a capias is applied for, but it is not at all essential, and when it is inserted, the Judges pay no attention to it. All that the statute requires is, that “the plaintiff shall by affidavit shew to the satisfaction of the Judge, that there is probable cause for believing that the defendant is about to quit England :" that is, that the probable cause shall appear, from the facts stated, to the Judge; it does not mean that it shall appear to the deponent.

Rule discharged.


PEACOCK moved for a rule to shew cause why, the The Court refused, after the lapse of a year,

defendant should not be discharged out of the custody of to discharge a

the sheriff of Oxfordshire, upon an affidavit of the defendparty who had been arrested ant, which stated that he was arrested on the 13th of under a ca. sa. in a wrong

April, 1840, by virtue of a writ of ca. sa. directed to the county, although heswore sheriff of Oxfordshire, but that the arrest was made in the that he was not

county of Berks, at a distance of more than 900 yards aware of that fact until ten from the boundary of the county of Oxford; that the months after his arrest, and that defendant was not aware of the last-mentioned fact antil he then applied the month of February, 1841, and that immediately on his discharge to ascertaining it he applied to a Judge to be discharged, a Judge, who refused to in. who, however, refused to interfere. Peacock urged that terfere.

the rule which requires parties complaining of irregularity Exch. of Pleus,

1841. in process to apply to the Court promptly, did not apply where the proceeding was altogether void, as in this case. GREENSHIELD But


PER CURIAM.-We cannot interfere after such a length of time has been allowed to elapse: the defendant must adopt any other remedy to which he may be entitled.

Rule refused.

duction of

WELLS v. Foster. ASSUMPSIT for money had and received, and on an A compensation

April 29. account stated. Plea, non assumpsit. At the trial before public civil ofLord Abinger, C. B., at the Middlesex sittings after Hilary ficer on the reTerm, it appeared that the defendant had held a situation offices in his de

partment, under as clerk in the Audit Office for upwards of twenty years, the 4 & 5 Will.

4, c. 24, is not up to the year 1835, when, the establishment being re

assignable by duced, he was placed on a retired allowance of £130 a him. year, granted to him, not for life, but as an allowance for maintenance until he should be called on to serve again, and with an express understanding that he was bound, whenever he should be called upon, to re-enter the Audit Office, or to take any other office under the Crown of equal value. In 1837, the defendant, being in execution at the suit of the plaintiff, executed to him an assignment of this annuity, and also gave a warrant of attorney to secure the payment of the debt by instalments. The deed of assignment contained a covenant that the defendant had good title to assign the annuity. In consideration of the execution of this deed, the defendant was discharged from custody. After his discharge, the plaintiff's debt remaining unpaid, he obtained an injunction to restrain the defend


Exch. of Pleas, ant from securing or assigning over any part of his pension ; 1841.

which was subsequently dissolved, upon the terms that the WELLS defendant's attorney should receive the pension and it Foster. into a banking-house, and that the plaintiff should be at

liberty to bring any action he might be advised, for the amount so paid in. The present action was brought accordingly. Upon these facts, the Lord Chief Baron directed a verdict for the plaintiff, damages 671. 108., leave being reserved to the defendant to move to enter a nonsuit, if the Court should be of opinion that the defendant's pension was not assignable in law.

Erle having obtained a rule nisi accordingly,

Hoggins now shewed cause, and contended that this pension or annuity was not like half-pay, which was a retaining payment for future services, and therefore not assignable ; Flarty v. Odlum (a), Lidderdale v. Duke of Montrose (6), Priddy v. Rose (c); but that it was altogether in the nature of a compensation for past services, and when once granted, could not be withheld. It was therefore subject to the absolute control of the grantee, and he might assign it to a creditor. In support of this view, he referred to the stat. 4 & 5 Will. 4, c. 24, s. 19 (d).

(a) 3 T. R. 681.

that if he shall decline, when call(6) 4 T. R. 248.

ed upon so to do, to take upon (c) 3 Mer. 102.

himself such office or situation, and (d) Which enacts, that every execute the duties thereof satisfacperson to whom

any compensation torily, being in a competent state of or allowance, in consequence of the health, he shall forfeit his right abolition or reduction of office, to any compensation or allowance shall hereafter be granted, shall at which may have been granted to him all times, when called upon, be lia- in respect of any former services. ble to fill, in any part of his Ma- Sect. 30 enacts, "that nothing in jesty's dominions in which he shall this act contained shall extend or have already served, any public be construed to extend to give any office or situation under the Crown person an absolute right to como for which his previous public ser- pensation for past services, or to vices may render him eligible; and any superannuation or retiring al.

« ForrigeFortsett »