Cooper v Pegg
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1855 |
| Date | 23 May 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 758
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
For subsequent proceedings see 16 C. B. 454.
[264] cooper v. pegg. May 5, 1855. [For subsequent proceedings see 16 C. B. 454.] By an order of reference, in an action for an injury to the plaintiff's reversion by making a drain into his premises, a verdict was directed to be entered for the plaintiff, claim 5001., costs 40s., subject to the award of a barrister, to whom the cause and all matters in difference were referred, and who was empowered to direct a verdict for the plaintiff or the defendant as he should think proper,-the arbitrator to have all the same powers as the court or a judge sitting at nisi prius, and the costs of the suit to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator.-The arbitrator by his award found all the issues in the action in favour of the plaintiff, except the first, and that he found partly for the plaintiff and partly for the defendant; and he further directed that the verdict entered for the plaintiff should stand, but that the damages should be reduced to one farthing; and he further ordered the defendant to pay the plaintiff 51.:-Held, that the plaintiff was not, in the absence of a certificate under the 3 & 4 Viet. c. 24, s. 2, entitled to the costs of the cause; and, the postea having been erroneously made up with the following assessment of damages and costs,-" and the jury assess the claim of the plaintiff over and above his costs of suit to one farthing, and for those costs to 40s.,"-the court allowed it to be amended, by striking out the words in italics.-Held also, that, upon moving for the rule, it was not necessary for the defendant to bring before the court the order of reference, but that it was enough to shew the award, which recited it; for, that, if there was anything in the order 16C.B. 265. COOPER V. PEGG 759 of nisi prius itself inconsistent with what was recited in the award, it was for the other side to shew it. This was an action upon the case for an injury to the plaintiff's reversion. The declaration stated, that, before and at the time of the committing of the grievances by the defendant as thereinafter mentioned, divers, to wit, two messuages and premises, with the appurtenances, were, and still are, in the possession and occupation of one Joseph Dunstan, as tenant thereof to the plaintiff, the reversion thereof then and still belonging to the plaintiff, and extending under and along the said messuages and premises, with the appurtenances, respectively, and communicating therewith, and being parcel thereof respectively, there then was, and still is, a certain drain or sewer for the drainage and conveyance of water, filth, and refuse from the said messuages and premises respectively unto and into a certain public and common drain or sewer near thereto : Yet the defendant, well knowing the premises, but intending to injure the plaintiff in his reversionary estate and interest of and in the said messuages and premises, with the appurtenances, respectively, whilst the said messuages and premises, with the appurtenances, were so in the possession and occupation of the said tenant of the plaintiff, and the plaintiff was so interested therein as aforesaid, to wit, on, &c., wrong-[265]-fully and injuriously, and without the licence and against the will of the plaintiff, caused a certain opening and entrance to be made into the said drain or sewer so extending under and along the said messuages and premises, with the appurtenances, as aforesaid, and then and on divers other days and times between the day aforesaid and the commencement of this suit, wrongfully and injuriously, and without the licence and against the will of the plaintiff, caused to be diverted and carried by and through the said opening and entrance into the said drain or sewer, and under and along the said messuages arid premises, with the appurtenances, respectively, divers large quantities of filth, soil, and refuse, and therewith wrongfully and injuriously caused the said drain or sewer to be filled, choked, and obstructed, and kept and continued the said opening and entrance so made, and the said drain or sewer so filled, choked, and obstructed as aforesaid, for a long space of time, to wit, thence hitherto; and by means and in consequence of the defendant so causing the said opening and entrance to be made and continued as aforesaid, and so causing to be diverted and carried by and through the same into the said drain or sewer such filth, soil, and refuse as aforesaid, and so causing the said drain or sewer to be so filled, choked, and obstructed as aforesaid, and so continuing the same filled, choked, and obstructed as aforesaid, the said drain or sewer had become and was unfit and insufficient for the drainage and conveyance of the water, filth, and refuse from the said messuages and premises as aforesaid, or either of them, and thereby the said messuages and premises, with the appurtenances, respectively, had been and were rendered foul, damp, and unwholesome, and had become and were greatly injured and deteriorated in value, and the plaintiff had been and was greatly injured and aggrieved in his said reversionary estate and [266] interest of and in the said messuages and premises, with the appurtenances : And the plaintiff claimed 5001. The defendant pleaded,-first, not guilty,-secondly, that the reversion did not belong to the plaintiff, as alleged,-thirdly, that there was no such drain or sewer as first mentioned in the declaration,-fourthly, that the said first-mentioned drain or sewer was not such parcel as alleged,-fifthly, that the grievances complained of were, and each of them was, committed by the leave and licence of the plaintiff. Issue thereon. By an order of nisi prius made on the 16th of June last, it was ordered, that a verdict be entered for the plaintiff, claim 5001., costs 40s., subject to the award of a barrister, who was thereby empowered to direct that a verdict should be entered for the plaintiff or the defendant as he should think proper, and to whom the cause and all matters in difference between the parties were thereby referred; that the arbitrator should have all the same power as the court or a judge sitting at nisi prius ; that the arbitrator should view the premises mentioned in the declaration, and award what should be done between the said parties with reference thereto; that all other parties interested should be at liberty to become parties to the said reference j and that the costs of the said suit, to be taxed, should abide the event of the said award, and that the costs of the reference and award, to be taxed, should be in the discretion of the arbitrator. 760 COOPER V. PEGG 16 C. B. 267. On the 30th of June, the following order was made by Cresswell, J. :- " Upon hearing the attorneys or agents for the plaintiff and the defendant, and also for John Hopper and Mary Woodhouse, the defendants in two certain actions now pending in this court at the suit of the plaintiff, and being parties interested in the subject-matter of the reference hereinafter mentioned, and also for Francis Orme and Joseph...
To continue reading
Request your trial
-
Scott v Bennett
...and Campsie Alum CompanyENR 3 H. L. C. 25. Brittain v. Kinnaird 1 Brod. & Bingh. 432. the Queen v. Bolton 1 Q. B. 66. Cooper v. PeggENR 16 C. B. 264, 454. Reid v. AshbyENR 13 C. B. 897. Burgess v. The Guardians of the Mitchelstown UnionUNK 4 Ir. C. L. 566. Southwell v. Bird 7 Dowl. Pr. C. 5......
-
Wigens v Cook
...were to abide the event of the award, which is in favor of the plaintiff. Griffiths v. Thomas is precisely in point. In Cooper v. Pegg, 16 C. B. 454, the distinction now contended for was taken by the court. The plaintiff (795] claims costs here by virtue of the agreement he has entered int......
-
Jones v Jones
...it originally stood. [Erie, C. J. Strike out "as it originally stood," and the [834] event is in favour of the plaintiff.] Cooper v. Pegy, 16 C. B. 454, is more like this case. There, by an order of reference in an action for an injury to the plaintiff's reversion by making a drain into his......
-
Bennett v Scott
...Pleas Bennett and Scott M'Alister v. Callan 4 Ir. Jur.. N. S., 4. Brophy v. JonesIR 8 Ir. Com. Law Rep. 240. Cooper v. PeggENR 16 C. B. 264. Reid v. AshbyENR 13 C. B., N. S., 897. Wigens v. CookeENR 6 C. B., N. S., 784. Swinglehurst v. AlthamENR 3 T. R. 138. Wallen v. SmithENR 5 M. & W. 159......