Jackson v Cummins and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 145
EXCH. OF PLEAS.
S. C. 8 L. J. Ex. 265; 3 Jur. 436. Followed, Forth v. Simpson, 1849, 13 Q. B. 680.
jackson 11. cummins and otkeus. Exch. of Pleas. 1839.-No lien exists at common law for the agistment cf milch cows. [S. C. 8 L. J. Ex. 2fi5 ; 3 Jur. 436. Followed, Forth v. Simpson, 1849, 13 Q. B. 080.] Trespass for breaking and entering an outhouse and premises belonging to the plaintiff, and seizing and driving away ten cows, the property of the plaintiff, and converting and disposing of the same to the defendants' own use, ifec. The defendants pleaded, first, not guilty ; secondly, as to taking &c. two of the cowSj that the said cows, for the space of eight months before the said time when &c., had been depastured, agisted, and fed by the defendant Charles Cummins for the plaintiff, in and, upon certain lands of him the said Charles Cummins, at the request of the plaintiff, for a certain reward and remuneration to be paid the said Charles Cummins by the plaintiff, and there was and still is due sand owing to the said C. Cummins from the plaintiff the sum of 161. 5s., for and in respect of the said agistment of the said two cows: and that it was agreed between the plaintiff and defendant Charles Cummins, that the said C. Cummins should retain, have, and take and keep the possession of the said two cows so long as the said sum of 161. 5s. should remain unpaid : that the said two cows then and at the time of the said agreement were in the possession of the said C. Cummins, and so remained until the plaintiff fraudulently, unlawfully, and wrongfully took them out of the same as hereinafter mentioned ; that afterwards, and after the said agreement, and whilst the said two cowa [343] were in the possession of the said C. Cummins under the same, and whilst the said C. Cummins had a lien upon the same by law and by the agreement aforesaid, and just before the said time when &c., the plaintiff wrongfully, unlawfully, and surreptitiously, and contrary to the said agreement, with force and arms, broke and entered the said close of the said C. Cummins in which the said two cows were depasturing and agisting as aforesaid, and wrongfully, fraudulently, unjustly, and unlawfully took, carried, and drove away the same out of the said close of the said C. Cummins, and put and placed the same in the said outhouse and premises in the declaration mentioned, without paying the said sum so agreed to, and then due to the said C. Cummins. The plea concluded with a justification by the defendant Cummins in his own right, and by the other defendants as his servants, in peaceably entering the outhouse and premises, in order to retake the cattle, and retaking them accordingly. The plaintiff took issue on the first plea, and to the second replied da injuria. The cause was tried before Parke, B., at the last zYssizes for Yorkshire, when it was proved that the cows had been depastured on land belonging to the defendant. The jury found that there was no such agreement as stated in the plea, that the defendant should retain and keep possession of the cows until the amount due for the pastnrage was paid, and thereupon found a verdict for the plaintiff, the learned Judge reserving leave to the defendant to move to enter a nonsuit, in case the Court should be of opinion that a lien existed at common law for the agistment of cattle. Alexander having, in Easter Term last, obtained a rule accordingly, Cresswell now shewed cause. The point that arises in this case involves the question whether the case of t%ap-[344]-wa v. Allen (Cro. Car. 271) be now law. The first question is, whether a lien may be given in evidence under the general issue. [Parke, B. It certainly cannot be given in evidence under the general issue.] The next question is, whether the second plea, is a good answer to the action. The plea begins by alleging that the cows had...
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