Bennet v Talbot
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 190
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill. 8 Will. 3, B. R. 1 Ld. Raym. 149, S. C. Comyns 26, S. C.
190 DECLARATION 1 SALKELD, 213. 2. bennet versus talbot. [Hill. 8 Will. 3, B. R. 1 Ld. Raym. 149, S. C. Cotnyns 26, S. C. Garth. 382. Bennet versus Talboys, 5 Mod. 307. Declaration concluding contra form, staluti is well enough, though some of the matters are not within the stat. Comb. 420, S. C. Cases B. R. 121. Holt 661. Trespass for entering his close, and treading down his grass and corn, and hunting there, the defendant being an inferior tradesman, viz. a clothier, contra pacem domini Regis, & contra formam statuti inch provis. After verdict pro quer., it was objected in arrest of judgment, that contra forniam statuti goes to the whole declaration, wherein several of the trespasses contained are not contrary to any statute; for the Statute 4 & 5 W. & M. does only increase costs. Holt, C.J. If an Act of Parliament increases a penalty, or deprives a man of a benefit he had before at common law, in such case, if one declares upon the statute, and does not bring himself within the statute, and concludes contra for/niMi staluti predict., it is naught. This was Penhallow's case, 3 Cro. 231. But if there be no Act of Parliament at all, and the plaintiff con cludes contra, formam statuti pnedict., it is only surplusage. This was Ward's case, 1 Vent. 103. Here an Act gives an increase of costs, and in that only restores the common law, which was taken away by the Stat. 22 & 23 Car. 2. The question is now, how the plaintiff shall declare in this easel In this count several trespasses are alleged, the last whereof is only within the statute, and the conclusion of the count is contra formcem statuti, which, though in grammatical construction it goes to the whole count, yet in law it only goes to the hunting, and therefore why may we not apply it only to the latter part, and reject it as to the rest [213] for surplusage, as was done in an indictment in Harwood's case, Al. 43. Accordingly the Court held, that contra formam statuti should only be applied to the latter part which was really against the statute ; and that, seeing the hunting and breaking could not be separated, the plaintiff should have his costs according to the new statute. Judgment for the plaintiff.
English Reports Citation: 91 E.R. 516
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
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