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Exch. of Pleas, hedge of the plaintiff, and undivided from the defendant's 1841.
adjoining field. It must also be admitted, that the plain
tiff gave some evidence, upon which the opinion of the Royston. jury might have been taken, of acts of ownership extend
ing to about four feet in width measured from the defendant's hedge; but that the building erected by the defendant, the subject of the action of trespass, was not within that limit, although clearly within the distance of the twelve feet from the hedge.
The misdirection complained of by the plaintiff's counsel is, that the learned Judge was wrong in telling the jury, that upon these facts they ought to find for the defendant upon this issue. And that question is in substance, whether, upon the issue that the close in which &c., was the soil and freehold of the defendant, the defendant undertakes to prove the whole of the close called the Buck Leap to be his property, or only that part or portion of it upon which the trespass complained of had been committed. And upon full consideration, we think that the latter is the true view of the pleadings, and consequently that the direction was correct in point of law.
There seems to us to be no distinction in the cases where the declaration describes the close in which &c., by metes and bounds, or by name only. In both cases, it must be taken to mean a complaint that the defendant committed a trespass upon a piece of land in the lawful possession of the plaintiff, described in the one case as being part of a close having certain metes and bounds, and in the other case, as part of a close named A. The metes and bounds in the one case, and the name in the other, serve only to define to the defendant what close it is, for the trespassing on a part of which the plaintiff brings his suit. When therefore the defendant, following the declaration, asserts in his plea that the close in which &c. is his soil and freehold, we think his plea means that the part of the close so described in the declaration, on which he
admits that he has done the acts complained of, was his Exch. of Pleas
1841. soil and freehold. By this plea, therefore, he undertakes to prove two propositions—first, that some part of the described close belongs to him; and secondly, that it is on Royston. this part of the close that all the acts complained of have been done. If he does this, he is entitled to the verdict ; if not, the plaintiff must succeed.
This view of the pleadings seems to us to be consistent with all the authorities cited in the argument. For the plaintiff we were referred principally to the case of Cocker v. Crompton. There, both plaintiff and defendant had each a close called the Fold Yard, The defendant had pleaded to a declaration for breaking and entering the plaintiff's close called the Fold Yard, that the close in which &c. was his soil and freehold. There it appeared that the trespass committed was in the plaintiff's Fold Yard; and the Court held that the plaintiff was right, and that where a close is described by name or by abuttals, there can be no new assignment. But there the defendant failed to prove the second proposition raised by the plea, viz. that the act complained of was committed in that close, or in that part of the close, which belonged to him. Here, on the contrary, the plaintiff and the defendant are, for the purposes of this argument, supposed each to have a portion of the close called the Buck Leap, and the acts complained of were done in that part belonging to the defendant. This case, therefore, falls expressly within the authority of Richards v. Peake, where the Court held the words "the close in which &c.,” to amount to a divisible allegation, and to be satisfied by proof that the defence stated was applicable to that part of the close in which the supposed trespasses were committed. The same rule was also laid down in Bassett v. Mitchell, and in Tapley v. Wainwright, which authorities seem to be conclusive on the subject.
It was urged, that the effect of the finding upon this plea
Erch. of Pleas, in future will be to conclude the right of the soil of the Buck 1841.
Leap as belonging to the defendant. But this is not so. If
the rule we have laid down, as being the true rule deducible Royston, from the authorities, be correct, the only effect of this re
cord, if given hereafter in evidence between the parties to it, or those claiming under them, will be to shew conclusively that some part of the Buck Leap belongs to the defendant; and further, if the party giving the record in evidence can shew where the trespass in the declaration was actually committed, the record will be conclusive that such part of the Buck Leap belonged to the defendant. But the record will prove no more than this, and a proof to this extent is only in full conformity with principle and justice.
On the whole, we are of opinion that this rule must be discharged.
RUTTER v. CHAPMAN. . In an action by At the trial of this cause, (which was an action by the the coroner of the county of
plaintiff for disturbance in his office of coroner for the Lancaster for disturbance
county of Lancaster, brought to try the validity of the in his office, the charter granted by the Crown to the borough of Manchesplea set forth a charter granted ter (a), the defendant had in attendance a number of witby the Crown to the borough of
nesses (who, however, in consequence of the course the Manchester, pursuant to the stat. 1 Vict. c. 78, s. 49, and the issue in the cause was, whether the petition for such charter was the petition of the inhabitant householders of the borough, and whether the charter was accepted by them. The defendant had witnesses in attendance at the trial, to prove the genuineness of the signatures to the original charter, which was lodged at the Privy Council office:—Held, that the charter was a document which the defendant ought to give a notice to admit and inspect, within the rule of H. T. 4 Will. 4, s. 20, and that, not having done so, he was not entitled to the costs of the witnesses above mentioned. That rule extends to every document which a party proposes to adduce in evidence, and is not confined to documents in his custody or control.
(a) See ante, p. 1.
cause took, were not actually called), to prove the signa- Erch. of Pleas,
1841. tures of the petitioners in favour of the charter. The petition had been lodged at the Privy Council Office, pursuant
ROTTER to the stat. 1 Vict. c. 78, s. 49. No notice had been given CHAPMAN. by the defendant, under the rule of H. T. 4 Will. 4, s. 20, to admit and inspect the petition. The Master having, on taxation, allowed the defendant the costs of the above witnesses,
Cresswell, in Easter Term, obtained a rule to shew cause why the taxation should not be reviewed, and the costs of those witnesses disallowed: against which
The Attorney-General and Crompton now shewed cause.This is not a case falling within the operation of the rule of H. T. 4 Will. 4. That rule provides, that “either party, after plea pleaded and a reasonable time before trial, may give notice to the other, either in town or country, in the form thereto annexed, or to the like effect, of his intention to adduce in evidence certain written or printed documents ; and unless the adverse party shall consent, by indorsement on such notice within forty-eight hours, to make the admission specified, the party requiring such admission may call on the party required, by summons, to shew cause before a judge why he should not consent to such admission, or in case of refusal be subject to pay the costs of proof; and unless the party required shall expressly consent to make such admission, the judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice, which shall be proved at the trial to the satisfaction of the judge, &c., certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause.” And it is afterwards provided, that “no costs of proving any written or printed document shall be allowed to any party who shall have adduced the same in evidence on any trial, unless he shall have given such notice as
Erch. of Pleas, aforesaid, and the adverse party shall have refused or ne1841.
glected to make such admission, or the Judge shall have
indorsed upon the summons, that he does not think it reaCHAPMAN. sonable to require it.” Then the form of notice referred
to in the rule is as follows :—“Take notice, that the plaintiff [or defendant] in this cause, proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff], his attorney or agent, at — on between the hours of —, and that the defendant (or plaintiff ] will be required to admit, that such of the said documents as are herein specified to be originals, were respectively written, signed, or executed, as they purport respectively to have been,” &c. &c. First, even if this petition had been a document in the possession or within the control of the defendant, it is not such a document as is intended by this rule. The rule applies to documents which are, as such, either genuine or spurious; but the question in this case was not whether this petition was to be recorded as genuine, or rejected as spurious, but to what extent it was the petition of the inhabitant householders of the borough. The rule applies only to cases in which there can be an indorsement by the Judge that the document was proved to his satisfaction. [Alderson, B.—Is not each signature a written document?] Not within the meaning of this rule. The mere proof of the signatures would be insufficient; it was necessary further to shew that the subscribers were in fact inhabitant householders within the borough. It is clear the defendant could not have given notice in this case to inspect and admit a copy : the original itself must have been produced. What would be “the admission specified” in this case ?—That all were genuine signatures of inhabitant householders. The rule looks to a case where, in proving the document, you prove the whole of it, and does not apply to such a case as this, which involves the proof of an extrinsic fact.