Davison and another against Gill
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1800 |
| Date | 21 November 1800 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 25
IN THE COURT OF KING'S BENCH.
[64] davison and another against gill. Friday, Nov. 21st, 1800. An order made by justices of peace under the st. 13 Geo. 3, c. 78, s. 19, for stopping up an old foot-way aud setting out a new one must follow the form prescribed in the schedule annexed to the Act, and set forth the length and breadth of the new foot-way : otherwise it is no answer to a justification of a right of way pleaded to an action of trespass quare clausum fregit brought by the owner of the soil over which the old way led. The statute requires that the form set forth in the schedule " shall be used on all occasions, with such additions and variations only (c) Burr. S. C. 578. 1 Blac. Eep. 635, S. C. (d) Const. 594. (a)1 Burr. S. C. 12. (a)2 Vide post, B. v. The Inhabitants of Sheblear. 215 DAVISON V. GILL 1 EAST, 65. as may be necessary to adapt it to the particular exigency of the ease." Under these words a material variance from the form prescribed is fatal, and may be taken advantage of in a collateral proceeding. To trespass for breaking and entering the plaintiff's close calle_d Beck Meadow, in the parish of Arnold in the county of Nottingham, the defendant pleaded the general issue, and a justification of a public footway over the said close; upon which issues being joined, the cause was tried at the last assizes at Nottingham, It was admitted that the defendant used the road mentioned in the pleadings subsequent to its being turned as hereafter stated ; and the jury found a verdict for the plaintiffs subject to the opinion of this Court upon the following case. The road in question time imme-morially has been used as a public footway leading from the town of Arnold in the parish of Arnold to the town of Nottingham through and over the said close of the plaintiff's called Beck Meadow, until the same was stopt up under the authority of two justices at a special session holden for that purpose on the 9th of March 1798, pursuant to a notice under their hands and seals dated 24th of February preceding; whose orders and proceedings have been duly inrolled by the clerk of the peace,'and are as follows. " To His Majesty's Justices of the peace for the county of Nottingham to be assembled at their special sessions to be held &c. within the parish of Arnold in the said county of Nottingham on Friday the 9th of March 1798. Whereas there is now a certain footway or road leading from Arnold aforesaid towards Nottingham lying and being through certain lands and grounds called the Beck Meadow and Beck Meadow End closes, within the said parish of Arnold, belonging to Sarah Coape Sherbrooke gentlewoman and Mrs. Mary Lomas and her said [65] son Samuel Lomas respectively, and described in the plan hereunto annexed (a), ' Old Foot Path.' And whereas it would be more commodious to the public to have the said foot-path or road diverted or turned and stopt up, and to have the foot-way or road from Arnold aforesaid toward Nottingham to go in future on the common highway leading from near Arnold Mill into the turnpike road near thereto leading towards Nottingham, and from thence over part of a close or parcel of land belonging to the said S. C. Sherbrooke nearly opposite to Daybrook turnpike gate, and from thence along the said turnpike road leading towards Nottingham, as the same is now made convenient and commodious for people on foot, and described in the plan hereunto annexed ' New Foot Path,' in lieu of and in exchange for the said old foot-way or road; now we the said S. C. Sherbrooke Mary Lomas and Samuel Lomas do hereby consent and agree, and also request, that the said old foot-way or road may henceforth and at all times hereafter for ever be wholly stopt up and discontinued to be used as such, and that the...
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