Boyd and Another v Durand
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1809 |
| Date | 17 November 1809 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 1038
Common Pleas Division
1038 CREACH V. WILMOT 2 TAUNT. 1130. inclosed 20 years, the commoners' right of entry was gone ; and he mentioned the following case of Creak, v. Wilmot :ù (160] CREACH V. WILMOT. 1809. Derby Summer Assizes, 1752. Trespass for breaking closes, &e. Justification by a commoner, as being part of a common, &c. Evidence, that some of the closes had been inclosed above 40 years, and that the Plaintiff had a little house built on one of them, and it was insisted by the Plaintiff that this no longer remained a part of the common, dal the possession bad fixed the freehold in the cottager, and that the commoners were bound by the statute of limitations. Answered, that a right of common cannot be barred by the statute of limitations : that the question was on the mere right, and therefore though the statute of limitations would have been a bar in ejectment or formedon, where the land was in question, yet in this action, where the right only is in question, the statute is no bar. LEE C. J. A possession of above 40 years has been proved, and there is no difference between the lord of a manor and a commoner. The lord could not have brought an ejectment after 20 years possession. Here, the commoner, if he had any right, should have brought an assize of common, and not made an entry. The jury were directed to find for the Plaintiff. [161] BoYD AND ANOTHER V. DURAND. Nov. 17, 1809. The instructions called a praicipe given by the attorney to the fila,zer are not process in the cause ; and it is not necessary that they should contain a clause of ac etiam.ù If the sheriff make a warrant to four, jointly and not severally, and one make the arrest, the Court will not interfere to discharge the Defendant on motion.ùA warrant to four jointly and not severally, clearly will not authorize an arrest by one.ùIf a Plaintiff proceeds by a second original capias, instead of testatum capias, a second affidavit to bold to bail is riot necessary, whether in such case it is necessary to file an office copy of the affidavit with the filazer of the second county, Quwre1--At lease the omission does not so far vitiate subsequent proceedings, that the Court on motion will discharge a Defendant from arrest. Shepherd Se*. obtained a rule nisi that the Defendant, on filing common bail, might be discharged out of the custody of the sheriff of Surry, `for three objections ; first, that only one affidavit had been made for holding him to bail, and that had been filed with the filazer of Middlesex, and that a espies having issued into Middlesex, and the Defendant not being there found, the Plaintiff had not sued out a testatum calpias, but another original capias directed to the sheriff of Surry, but notwithstanding, had not filed with the filazer of that county an office copy of the affidavit to hold to hail, which, Shepherd said, the practice in such case required, pursuant to the statute 12 G. 1, c. 29, s. 2. Secondly, the memorandum called a...
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