Freeman against Read
| Jurisdiction | England & Wales |
| Judgment Date | 04 June 1863 |
| Date | 04 June 1863 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 425
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 32 L. J. M. C. 226; 10 Jur. N. S. 149. Discussed, R. v. Rollett, 1875, L. R. 10 Q. B. 478. Reffered to, Heath V. Weaverham Overseers, [1894] 2 Q. B. 112. Observations adopted, Ferrand v. Bingley Urban Council, [1903] 2 K. B. 449.
[174] freeman against read. Thursday, June 4th, 1863.-Highway rate. Exemption, Tything. Evidence. Action against surveyor. Calendar month. 5 & 6 Viet. c. 97, s, 4.-In an action against the surveyor of highways of the parish of S. for distraining on the goods of the plaintiff' for arrears of a highway rate, it appeared that the plaintiff was occupier of one of two farms in the tything of W., in that parish. The occupiers in W. had never paid highway rate for the parish of S. until 1857, though they had been rated to the poor rates of the parish, and they had always done the necessary repairs to the roads in W. Among other documents to prove that W. was a distinct tything, a parliamentary survey K. R li.-14* 426 FREEMAN V. BEAD B. ft S. 176. made in the time of the Commonwealth was admitted in evidence. In 1857 a highway rate, in which the plaintiff was assessed, waa made for the pariah, and affirmed, first by the Quarter Sessions, and afterwards by this Court, on a case stated by the Sessions. In July, 1861, the rate in question was made, and the plaintiff was summoned before justices, who issued their warrant of distress in obedience to a rule of this Court. Notice of action was given to the defendant on the 28th April, 1862, and the action was commenced on the 29th May following. Held, -1. That the action lay.-2. That the parliamentary survey was admissible.- 3. That there was sufficient evidence of a legal exemption of the tything of W. from liability to contribute to the repair of the highways in the parish of S.- 4. That the notice of action was given in due time. [S. C. 32 L. J. M. C. 226; 10 Jur. N. S. 149. Discussed, B. v. Bolktt, 1875, L. R. 10 Q. B. 478. Referred to, Heath v. Weaverham Overseers, [1894] 2 Q. B. 112. Observations adopted, Ferrand v. Bingley Urban Council, [1903] 2 K. B. 449.] This was an action of trespass commenced by writ of summons, dated the 29th of May, 1862, for breaking and entering the house and premises of the plaintiff, situate in the tything of Walcot, in the parish of Swindon, in the county of Wilts, and taking certain goods of the plaintiff. First plea: not guilty, by stat. 5 & 6 W. 4, c. 50, s. 109. Second plea, justifying the trespass by the defendant, as surveyor of the highways of the parish of Swindon, under a warrant of distress issued by justices of the county of Wilts for a sum of 51. 7s. 2^d., assessed upon lands and houses of which the plaintiff was occupier, situate in the parish of Swindon, the same being property liable to be rated to the relief of the poor of that parish, in a rate made on the 10th of July, 1861, for the repair of highways within that parish, and [175] afterwards duly allowed and published, together with 6s. 6d. for costs. Replication to the second plea. That the lands and houses of which the plaintiff was the occupier were situate within and were parcel of a certain tything in the parish of Swindon, called Walcot Tything, and that the inhabitants of that tything, from time whereof the memory of man is not to the contrary, had repaired and amended, and had been used and accustomed to repair and amend, and of right ought to have repaired and amended, all highways situate and lying in the tything, independent of the inhabitants of the rest of the parish other than the tything, and that the inhabitants of the rest of the parish other than the tything, from time whereof the memory of man is not to the contrary, had repaired and amended, and had been used and accustomed to repair and amend, and of right ought to have repaired and amended, all highways situate and lying in the rest of the parish other tban the tything independent of the inhabitants of the tything; and that by reason of the premises the lands and homes of which the plaintiff was the occupier, ought not to have been, or to be, and the plaintiff, as the occupier of the said lands and bouses, ought not to have been, or to be, rated and assessed to the rate and assessment for the repair of the highways within the parish. Issues on the pleas and the replication. On tho trial, before Keating J., at the Summer Assizes at Salisbury, 1862, it appeared that the action was brought against the defendant, who was surveyor of highways in the parish of Swindon, for distraining on the plaintiff for arrears of a highway rate made for that parish. The plaintiff was the tenant of one of two [176] farms, respectively called Walcot Farm and Broome Manor Farm, which comprised the tything of Walcot, in the parish of Swiudon, which tything was alleged to be immemorially exempt from the highway rate for the parish. Evidence was given that Walcot was a distinct place from the parish at the time of Domesday Book, and that it was a distinct tything or vill for all purposes, and part and parcel of the district Court at Ogbourne, of the King's honor of Newelme, otherwise called Ewelrae, which includes the Chiltern Hundreds, and was recognized as such by a survey of the manor of Wallingford, parcel of the honor of Newelme alias Ewelme, made and taken in 1652 "by virtue of a commission grounded upon an Act of the Commons of England assembled in Parliament for the sale of the honors, manors arid lands heretofore belonging to the late King and Queen and Prince." The admissibility of this survey was objected to; but the learned Judge received it. Evidence was also given of the 4 B. ft 8.177. FREEMAN V. READ 427 appointment of tythingmen from 1790 to 1847 in regular succession, and of suit and service having been done from time immemorial by the inhabitants of the tything at the Court held at Ogbourne. The extent or area of Walcot Farm is 380 acres, and the area of Walcot Farm and Broome Manor Farm together is nearly 1100 acres, and almost equal in extent to the rest of the parish of Swindon. It appeared from the parish books that the occupiers in Waleot had been rated to the poor rates of the parish; but there was no entry of any payment by them of the highway rate for the parish; various highway rates from 1673 to 1857 were put in, in some of which the occupiers of other tythings in the parish were rated separately, but the occupiers of Walcot and Broome Manor Farms were not assessed, nor had they, from [177] time immemorial, done any statute duty on the highways of the other portion of the parish. The occupiers of those farms had always repaired the roads within the tything, without the aid of the inhabitants of the rest of the parish ; and they had done so on two occasions uuder threats from inhabitants of Swindon to indict them. There were three highways across Walcot Tything; one of them, in the Broome Manor Farm, was a stoned road, the others were for the most part what are termed "green roads," with gates wherever a hedge intersected them: a part of the road in "Walcot Farm, enclosed by hedges, about ninety yards in length, and another part about the same length, where the same road crossed a brook, were stoned; they were also stoned near the gateways. The repairs were usually done at the same time that the stones were put down at the gateways of the farms. In 1857, the occupiers of Walcot and Broome Manor Farms were for the first time assessed to the highway rate for the parish of Swindon, and, on appeal to the Quarter Sessions, the rate was confirmed subject to a case for the opinion of this Court. Upon the facts stated in that case the order of Sessions was confirmed in Trinity Term, 1859 (a), the Court being of opinion that there was not sufficient evidence that Walcot Tything was a district of right maintaining its own highways. In July, 1861, the highway rate in question was duly made and allowed, in which the plaintiff" was assessed in respect of his occupation in the tything of Walcot. The plaintiff refused to pay the rate ; upon which a summons was taken out before justices, who decided that a distress [178] warrant should be issued, but suspended the issuing of it in order that an application might be made to this Court. A rule was obtained calling upon the justices to isaue thuir warrant, and was made absolute by Blackburn J., in the Bail Court, iu Hilary Term, 1862; iti obedience to which the distress which was the subject of the present action was made. Notice of action was given to the defendant on the 28th of April, 1862. It was objected for the defendant, first, that there was no evidence to go to the jury of the exemption of the tything of Walcot from the highway rates of the parish ; secondly, that the action would not lie; thirdly, that notice of action was not given in due time, and consequently the action was commenced too soon. The learned Judge overruled these objections, reserving leave to the defendant to move to enter a nonsuit; and left to the jury the question whether the tytbing of Walcot had from time immemorial been used to repair ita highways independently of the rest of the parish of Swindon. The jury found a verdict for the plaintiff for 51. 7s. 2d., the amount of the rate. In Michaelmas Term, 1862, Coleridge moved for a rule nisi, iu pursuance of the leave reserved, or for a...
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