Holford against Bailey
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 1150
QUEEN'S BENCH
Reversed in Exchequer Chamber, 13 Q. B. 426.
holford against bailey. 1846. A declaration, reciting that defendant had been summoned to answer plaintiff in an action of trespass, charged that defendant, with force and arms, broke and entered a fishery, to wit the sole and exclusive fishery of plaintiff, in a certain part of a river then flowing and being over the soil of one F., and then fished for fish in the said fishery of plaintiff, and the fish of the said fishery of plaintiff, there found, and being in the said fishery, chased and disturbed : conclusion, contra pacem. Held, on motion in arrest of judgment, after verdict for plaintiff: (1) That the declaration was shaped in trespass. (2) That (semble) trespass lies for breaking and entering the several fishery of (a) Marsh cited the 3d edition, pp. 400, et seq. SQ. B. 1001. HOLFORD V. BAILEY 1151 A. on the soil of B. But (3) That the words "sole and exclusive fishery" were not equivalent to "several " fishery ; and that no cause for an action of trespass appeared. [Reversed in Exchequer Chamber, 13 Q. B. 426.] The declaration stated that the defendant had been summoned to answer the plaintiff in an action of trespass ; and it contained four counts. The first count was for breaking and entering, with force and arms, &c., a several fishery of plaintiff in the river Usk, in Brecknockshire. The second count charged that the defendant, to wit on, &c., with force and arms, &c., broke and entered a certain other fishery, to wit the sole and exclusive fishery of the plaintiff, to wit in the said river Usk, in a certain other part of the said river then flowing and being over the soil of one Philip Francis, and adjacent to, &c., situate in the said county, and then fished for fish in the said last mentioned fishery of the plaintiff, and the fish, to wit five salmon, &c., of the said last mentioned fishery of the plaintiff, there found, and being of great value, to wit, &c., then being in the said last mentioned fishery, then chased and disturbed. The declaration concluded: "And other wrongs to [1001] the plaintiff then did, against the peaee of our lady the Queen, and to the plaintiff's damage," &C. Ten pleas were pleaded, leading to issues of fact. On the trial, before Parke B., at the Gloucestershire Spring Assises, 1844, the defendant obtained a verdict on issues disposing of the first, third and fourth counts j and the plaintiff had a verdict on all the issues relating to the second count. In Easter term, 1844, Kelly obtained a rule nisi for arresting judgment on the second count, on the ground that it was shaped in trespass, and that trespass did not lie for an injury to the several fishery of the plaintiff on the soil of a third person; and that, assuming that it did lie, the second count did not assert a several fishery, the words "sole and exclusive" not being equivalent to "several." In last Trinity term (a), Talfourd Serjt., Alexander, and E. V. Williams shewed cause. It is not to be assumed that the second count is in trespass: the record does not shew the form of the action. [Kelly. The declaration recites that the defendant has been summoned to answer in an action of trespass.] When the record is made up, that need not appear, since the rule of Hil. 4 W. 4, Forms, No. 1; Ball v. Hamlet (1 C. M. & R. 575. S. C. 5 Tyrwh. 201). Before the new rules, in Anderson v. Thomas (9 Bing. 678), it was held that not to state fully the form [1002] of action was, only an irregularity : and the words " of a plea that he render to him the sum of 77501.," in bill for debt, were held to be superfluous; Lord v. Houstoivn (11 East, 62), recognized in Ferguson v. Mitchell (2 C. M. & R. 687, 689; Tyrwh. & Gr. 179, 181), where Parke B. said that, since the new rules, no recital of the writ was necessary in making up the issue. The other counts cannot be looked to: at this stage no objection can be taken on the ground of a misjoinder. The second count has indeed the words "with force and arms:" but these may be inserted in a count in case, as was pointed out by Williams Serjt., arguendo, in Woodward v. I'Falton (2 New R. 476, 478). It is true that Mansfield C.J. there says that the words are "generally applicable to actions of trespass only : " but the authorities do not bear this out. In The Earl of Shrewsbury's case (9 Eep. 46 b., 50 b.), the Court said : "When there are two causes of an action on the case, the one causa causans, and the other causa causata; causa causans may be alleged to be vi et arm', for that is not the immediate cause or point of the action, but causa cauaata, as in 12 H. 4, 3 a. (Yearb. Mich, 12 H. 4, 3, A, pi. 4), the putting of dung into the river is causa causana, and therefore it may be vi et armis, but causa causata, s. the point of the action on the case is the drowning of the plaintiff's land :" and other instances are given : and this passage is referred to in Com. Dig. Action upon the Case (C, 3), C, 4). At the utmost, the word* are only matter of special demurrer, within stat. 4 Ann. c. 16, s. 1 : and judgment cannot be stayed after verdict on the ground of a variance between [1003] the writ and declaration ; stat. 5 G. 1, c. 13, s. 1. In Bowdell v. Parsons (10 East, 359), the former statute waa applied to a motion in arrest of judgment: and Lord Ellen- (a) May 29th, 1845. Before Lord Penman C.J., Patteson, Williams, and Coleridge Js, 1152 HOLFORD V. BAILEY 8 Q. B. 1004. borough pointed out that the omission of a venue was less material than other instances given in the statute, of which the improper omission of vi et armis is one. The law as to such variations between the writ atid declaration, and the mode formerly allowed of taking advantage of them, appear in note (3) to Redman v. Edolph (1 Wms. Saund. 318). If the record shews that the action is substantially in case, the count will be treated as so shaped. In Hudson v. Nicholson (5 M. & W. 437), it was held that, where a wrong was stated which was a cause of trespass, the declaration might, after verdict, be considered as shaped in trespass, though the words vi et armis were omitted. Brown v. Bowman (d) is an affirmance of this principle. But, next, the count discloses a wrong which is properly the subject of an action of trespass. It complains of a breaking and entering of the plaintiff's several fishery. An objection will be made, that, instead of the word "several," the count has only the words "sole and exclusive." Now the old Latin word is "separalis," which is more correctly rendered by the words "sole and exclusive" than by the word "several." In Rogers v. Jllhn(e), the language of the replication was "sole and exclusive liberty and privilege of fishing:" and this was treated as a description of a several fishery. In Gips v. Wollicot (Comb. 433, 434, 464), Eookby J. said : " Separal1 piscaria [1004] is where no one else hath libertatern piscandi:" that exactly answers to the words " sole and exclusive." But, as will be shewn afterwards, if there be a difference between the word " several" and the words "sole and exclusive," it is in favour of the plaintiff here: for, the question having often been how far "several" implies an exclusive right, the difficulty is here avoided, by substituting for that word a phrase which expresses exclusive right. Then the main question is, whether trespass lies for breaking and entering a several fijhery which the plaintiff has in the soil of another. In The Duke of Somerset v. Fogwell (5 B. & C. 875), the owner of a several fishery, in a navigable river where the tide flowed and ebbed (in which therefore he had not the soil), succeeded in an action of trespass; the defence relied upon being that the owner had demised the right, which defence failed for want of a grant under seal. Bayley J. there adopted...
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Holford v Bailey, in Error
... ... English Reports Citation: 116 E.R. 1325 IN THE EXCHEQUER CHAMBER. Holford against Bailey, in Error S. C. 18 L. J. Q. B. 109; 13 Jur. 278. See Marshall v. Ulleswater Steam Navigation Company, 1863, 3 B. & S. 744, 749. Adopted, Attorney-General v. Emerson, [1891] A. C. 654. Applied, Hindson v. Asby, [1896] 2 Ch. 10; Fitzgerald v. Firbank, [1897] 2 Ch. 101. Referred to, Ecroyd v ... ...
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R. v. Nikal (J.B.), (1996) 196 N.R. 1 (SCC)
...73]. Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732; 122 E.R. 274, refd to. [para. 78]. Holford v. Bailey (1846), 8 Q.B. 1000; 115 E.R. 1150, refd to. [para. R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 92]. R. v. Bain, [1992] 1 S.C.R. 91......
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R. v. Nikal (J.B.), (1996) 74 B.C.A.C. 161 (SCC)
...73]. Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732; 122 E.R. 274, refd to. [para. 78]. Holford v. Bailey (1846), 8 Q.B. 1000; 115 E.R. 1150, refd to. [para. R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 92]. R. v. Bain, [1992] 1 S.C.R. 91......