Earl of Darlington v Bowes. Earl of Darlington v Bowes
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 1759 |
| Date | 02 March 1759 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 688
HIGH COURT OF CHANCERY
See Waters v. Waters, 1848, 2 De G. & Sm. 617.
[270] Earl of darlington v. bowes. Earl of darlington v. bowes. 2d March 1759. [See Waters v. Waters, 1848, 2 De G. & Sm. 617.] New trials granted in issues directed to try the right of the soil, though the judge certified in favour of the verdict; as there was no precedent of a decree, where the inheritance would be bound, being made upon one verdict only.-S. G. cit. 1 Burr. 253. By orders made at the hearing in the two former of these causes on the 5th of May 1755, in the last on the 20th of February 1755, issues had been directed to be tried at the then next assizes for the county of Durham, whether the commons, &c., within the boundaries therein mentioned, or any and what part thereof, were the soil and freehold of the plaintiff or the defendant. These issues had been thrice carried down to be tried at Durham, and (the regulations of the court of King's Bench, as to views, having not yet been made (Note : They were made in Hilary Term, 30 Geo. 2 [1757]. Vide I Burr. 253)) they were twice put off by the defendant upon objections on account of the view; and the third time a view having been granted by consent upon terms, the trial was prevented from taking place by an accident which happened to the Judge. The defendant moved in Trinity Term 1758, for a view, but refused to renew his former consent, or to come into any terms, insisting that by law he was entitled to a view of course. The plaintiff had likewise moved for a view consenting to terms. Both motions were adjourned to the last day of Trinity Term 1758, when the court, upon ah1 the circumstances, rejected the defendant's motion, unless he consented within a week to the terms proposed, which he refused. (1 Burr. 2.) [271] The issues came on to be tried at the last summer assizes at Durham before Mr. Baron Smythe, when, in the former, a verdict was found for the plaintiff by default; in the second, which was tried, there was a verdict also for the plaintiff. The learned judge certified, that he was satisfied with the verdict, and also " that a view was perfectly unnecessary, there being no dispute concerning the locality, discrimination, or limits of the premises, but merely a question td'whom certain lands belonged." (1 Burr. 256.) The defendant now moved for new trials, on the ground, First, Of ha ving been injured for want of a...
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