Bell v Wardell
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1740 |
| Date | 08 May 1740 |
| Court | Court of Common Pleas |
English Reports Citation: 125 E.R. 1131
Common Pleas Division
Applied, Sowerby v. Coleman, 1867, L. R. 2 Ex. 99. Discussed, Hall v. Nottingham, 1875, 1 Ex. D. 3.
all that was determined iii the case of &wage v. Field, and that it was held in that case that it was necessary to prove the surrender in order to shew that the Court bad a jurisdiction, He insisted that it ought to have been set forth in the plea that the defendant surrendered himself in order to give the Court a jurisdiction, which it is not. Upon the former Acts it was always considered necessary to set forth that the party was in prison in order to give the Court a jurisdiction ; and by the last Act a surrender is made to be equal and tantamount to a legal imprisonment. Unless therefore it appear that the party was legally in prison or surrendered himself according to the 10 Geo. 2, he insisted that the sessions had no jurisdiction. He insisted likewise that the defendant ought to have confessed the action in his plea, before be pleaded in exoneration of his person. And he said that for ought that appeared the defendant might have been committed for a criminal cause, which is not within the Act. Draper Serjt. in reply admitted that in the case of Savage v. Field it was held that it must be shown that the justices had a jurisdiction, but endeavoured to distinguish the present case, because he said that by the Stat. 2 Antic the party was obliged to plead an imprisonment, but that by this Act he is not obliged to plead a surrender. [201] But I was of opinion for the plaintiffs that the plea was not good, and therefore had no occasion to give any opinion upon the replication. I admitted that if it had appeared (a) that the sessions had a jurisdiction, it would have been sufficient to have said generally that the sessions had discharged him, and that we could not inquire into any facts necessary to be done by him in order to obtain his discharge, of which the sessions were the only and the proper judges, and must be taken to have adjudged right. But as in the case where an imprisonment is necessary it must always be set forth (6) that the party was in prison in order to give the justices a jurisdiction, so I was of opinion that in this case it is equally necessary for the party to set forth that he surrendered himself, which by the last Act is made tantamount to an imprisonment, but it is not set forth in the present plea that the party surrendered himself or that he was ever in prison ; for it is only said that be was discharged from his imprisonment aforesaid, whereas no imprisonment was mentioned before. Arid I thought that the words of the last Act did not warrant the distinction taken by Draper. As to the objection that the defendant should have confessed the action, I did not think that there was much in it ; for by not denying it and pleading only in exoneration of his person, I was of opinion that be had sufficiently confessed it. Mr, J. FORTESCUE A. of the same opinion; and said that the plaintiffs might have demurred to the plea. Mr. J. W. FORTERCUE of the same opinion. So judgment for the plaintiffs." [202] THOMAS BELL against GEORGE WARDELL AND JOHN CUMMIN ALIAS COMYNES. .E. 13 G. 2. Thursday, May 8th, 1740. [Applied, &wall v. Coleman, 1867, L. R. 2 Ex. 99. Discussed, Hull v. Nottingham, 1875, 1 Ex. D. 3.] Justification (in trespass) under a custom fur all the inhabitants of a town to walk arid ride over a close of arable land at all seasonable times in the year was holden bad, because it appeared that the trespass was committed when the corn was standing, though the defendant averred that it was a seasonable time." Seasonable time" partly question of law and partly of fact.Replication de injuria sue propria &c. bad, when it puts several distinct points in issue. The opinion of the Court was thus given by WILLES LORD GRIEF JUSTICE. "Trespass, for that the defendants on the 2d of (a) See Sollers v. Lawrence, post, Tr. 16 & 17 Geo. 2. (6) See Cofterel v. Hooke, Dougl. 97, and Marks v. Upton, 7 Duna. & East, 305, where it is pleaded (in the first case under stet. 16 Geo. 3, c. 38, arid in the other under etat. 34 Geo. 3, c. 69), that the defendauts were actually in custody on the respective days &c. and were duly discharged at the sessions according to the statutes. May 1738 and at divers times between that day and the 12th of the same month broke and entered two closes of the plaintiff called Shieldfield and Little Shieldfield at the town and county of Newcastle-upon-Tyne, and with their feet trod down spoiled and consumed the plaintiff's grass and corn there growing and with divers cattle trod down depastured ate up and consumed other grass and corn of the plaintiff's there growing, and broke threw down and spoiled five perches of his hedges and five perches of his fences, and other wrongs &c.; to the damage of 201. The defendant Wardell as to the force and arms and all the trespass supposed to be done with bulls cows sheep and swine pleads not guilty ; and as to the residue of the trespass pleads specially that the places in which &e. are two closes of pasture bounded (prout); and that the said two closes time out of mind and until &c. were lying together without any hedge or fence and were part and parcel of certain lands called and known by the name of Shieldfield, and have been repaired to and used as a public place of resort for the inhabitants of the town and county...
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