Mould against Edward Jones Williams and Edward Williams
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1844 |
| Date | 15 January 1844 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1326
IN THE QUEEN'S BENCH
S. C. D. & M. 631. Referred to, Revell v. Blake, 1872-73, L. R. 7 C. P. 311; L. R. 8 C. P. 533.
1326 mould v. williams 5 q, b. m9. [469] cases argued and determined in the queen's bench, in hilary term and vacation, VII. victoria. The Judges who usually sat in Bane in this term and vacation were Lord Den man C.J., Patteson J., Coleridge J., Wightraan J. mould against edward jones williams and edward williams. Monday, January 15th, 1844. Under the Highway Act, 5 & 6 W. 4, c. 50, s. 73 (whereby, if any timber, &e. is laid upon the highway so as to be a nuisance, and is not, after notice, removed, the surveyor, by order in writing from one justice, may remove the same) a justice, on information, summons and hearing, made an order in writing for the removal of plaintiff's timber, recited in such order to be laid upon a highway; and the timber was accordingly removed : Held that, in an action of trespass against the magistrate, plaintiff could not give evidence, in contradiction to the order, that the locus in quo was not a highway. [S. C. D. & M. 631. Referred to, Revell v. Slake, 1872-73, L. R. 7 C. P. 311 ; L. R. 8 C. P. 533.] Trespass for seizing and taking away plaintiffs goods, to wit 100 pieces of timber, &c., then lying on a piece of ground abutting, &c., and carrying away and converting the said goods. Plea: not guilty, by statute. Issue thereon. On the trial, before Lord Deriman C.J., at the sittings in Middlesex after Michaelmas term, 1843, it appeared [470] that the defendants were justices of the peace for the county of Middlesex, living at Enfield, near which the plaintiff resided. The other material facts of the case were stated as follows in the judgment of this Court on the after mentioned motion. "Under sect. 73 (a) of the Highway Act, the surveyor of the highways in the Judge rulad that the plaintiff ought to begin; and he did so, and obtained a verdict. Jervis now moved for a new trial on the ground that, on this record, the defendants had the right to begin. The test is, who would have obtained the verdict if no evidence had been given? [Lord Denman C.J. The question is, upon whom the affirmative lies. I believe that doctrine [468] is free from difficulty; and I got it from Lord Tenterden.] The material question here was, whether the distress in the name of James Hulme was made within twenty years next after the time at which William Hulme had the right to make such distress; and it lay on the defendants to shew that the distress was so made. There was no disputed affirmative to be proved before that. The allegation that William Hulme discontinued the receipt of the rent, is not such an affirmative; for it means no more than that W. Hulme ceased to receive rent in point of fact; it does not of itself imply that a cessation of the right commenced from that time. To raise that point it should have appeared that some act had been done or submitted to by W. Hulme, creating a positive discontinuance. As to this, Jervis referred to Doe dem. Davy v. Oxenham (7 M. & W. 131), and Grant v. Ellis (9 M. & W. 113). Lord Denman C.J. I have no doubt that the learned Judge was right in calling on the plaintiff to begin. The issue on his part involved an affirmative which he was bound to prove ; namely, the time at which the distress was taken. Williams, Coleridge and Wightman Js. concurred. The rule was refused on this point, but a rule nisi granted on others. Sea the cases on the right to begin, collected in Roscoe on Evidence, 175-177, 6th ed. (a) Stat. 5 & 6 W. 4, c. 50, s. 73, enacts, "That if any timber, stone," &c., "or other matter or...
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