Hendy and Others against Stephenson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1808 |
| Date | 28 June 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 696
IN THE COURT OF KING'S BENCH.
Referred to, Dalton v. Angus, 1881, 6 App. Cas. 813. Not followed, Palmer v. Guadagni [1906], 2 Ch. 494.
[55] hendy and others against stephenson and others. Tuesday, June 28th, 1808. A defendant in trespass cannot plead by way of justification that he was possessed of a right of common over the locus in quo under a deed of grant by a former owner, alleged to be since lost or destroyed by accident and' length of time, and therefore not preferred in Court, of which the date and names of the parties are unknown. [Referred to, Dalton v. Angus, 1881, 6 App. Cas. 813. Not followed, Palmer v. Ouadagni [1906], 2 Ch. 494.] Trespass for breaking and entering the close of the plaintiffs in the parish of St. John the Evangelist, Westminster, parcel of Tothillfields, &c. in the county of Middlesex, and pulling down a building there erected, &c. The defendants by their second plea justified the breaking and entering, &c.; for that the building was erected in Tothillfields, and that one M. B. Wise at the time, &c. was seised in fee of 10 acres of land, &c. contiguous to Tothillfields, and he and all those whose estate he had from time immemorial had right of common of pasture throughout Tothillfields; and because the building was wrongfully erected there and incumbered the same, so that he could not enjoy his common of pasture there without prostrating it, the defendants by his command, &c. broke and entered, &e. Sdly, they justified by a similar plea under Jeremy Bentham. 4thly, they pleaded that the said building was erected in Tothillfields, and that M. B. Wise before and at the time of the supposed trespass was seised in fee of other ten acres of land, &c. contiguous to Tothillfields; and that long before the said time when, &c. by a deed made between the then owner of the part of Tothillfields whereon the building was erected, and in which, &e. (such owner being then and there seised in fee of such part, &c.) and the then owner of the last mentioned land, &c. whereof M. B. Wise was so seised (such last mentioned owner being then and there [56] seised in fee of such last-mentioned land, and whose estate therein the said M. B. W. at the said time when, &c. had; but which deed is since lost or destroyed by accident and length of time, and therefore cannot be brought into Court here, and the date thereof is, and the particular parties thereto are, for that reason, wholly unknown to the defendants) the said then owner of Tothillfields, and in...
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