Philips v Davies
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1817 |
| Date | 23 June 1817 |
| Court | Exchequer |
English Reports Citation: 145 E.R. 970
IN THE COURT OF EXCHEQUER
philips v. davces. Tuesday, 23d June. Action to try a right of way, which was stated to be from a certain highway leading from the parish of L. to B. The highway was proved to be, at that part, within the parish of L.; this is no variance. This was an action on the case, to try a right of way. The way was described in the declaration to be " from a certain public highway loading from the parish of L. to B. into, through, and over the defendant's close," &c. At the trial of the cause before Mr. Baron thomson, at the last assizes for Gloucestershire, it appeared, that the highway stated as the abuttal of the way claimed was, at that part where this private way joined it, within the parish of L. This was objected at the trial, by the defendant's counsel, as a variance, the word "from" being exclusive, and therefore not supported by the evidence. The judge directed a verdict for the plaintiff, with liberty to move the [573] Court for a nonsuit on the point reserved. A rule to shew cause why; the verdict should not be set aside, and a nonsuit entered, having been obtained, cause was this day shewn by Milles and Russell.-In describing the way claimed, or in indicting a, way, the most scrupulous exactness is requisite, and every technical rule of setting it forth must be complied with. But where a way is mentioned collaterally in pleading, us the abuttal of the principal subject, the same precision is not necessary. Harriswi v. Sooke, Palm. 421. In such cases, it is sufficient if the Court can see from the evidence, that it is the same highway with that stated in the declaration. To describe the highway at full length, it should be stated to be "in, through, and from the parish of L. ;" but any part of that description which ascertains the identity of the road is a sufficient description of an abuttal. Plumer and Lane, contra.-It is immaterial to inquire whether the plaintiff was bound to set forth the termini a quo et ad quern of the...
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