Powell v Salisbury
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1828 |
| Date | 07 May 1828 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 970
EXCHEQUER OF PLEAS.
Referred to, Wilson v. Newport Dock Company, 1866, L. R. 1 Ex. 187; Lawrence v. Jenkins, 1873, L. R. 8 Q. B. 279.
[391] reports of casks arch/ed and ueterminiu in the court of exchequer, in trinity term, 9 geo. IV. and the SrrriNGH after. exchequer of pleak. powell v. salisbuuy. Saturday, May 7th, 1828.-The Courts above have no jurisdiction, by the Welsh .Judicature act, 5 Geu. 4, c. 106, s. '2, to arrest the judgment in a cause tried in Wales. Vaughau, B. dubitante. -The plaintiff declared in case against the defendant, for not repairing his fences, per quotl the plaintiff's horses escaped into the defendant's close, and were there killed by the falling of a 2Y. aj. 392. POWELL V. SALISBURY 97 i haystack: Held, that the damage was not too remote, and that the action was maintainable. [-Referred to, Wilson v. Newport Dock Company, 1866, L. It. I Ex. 187; Laivrence v. Jenkins, 1873, L. R. 8 Q. B. 279.] Case. The first count of the declaration stated, that the plaintiff' and defendant were possessed and in the occupation of adjoining closes ; that the defendant, by reason of his possession, was bound to repair the fences, to prevent the escape of cattle from the one close into the other ; that the defendant suffered the fences to be out of repair, whereby divers horses of the plaintiff, feeding in the close of the plaintiff', escaped out of the same into the close of the defendant, through the defect of fences, and were there killed, by the prostration arid falling clown of a haystack of the defendant. The second count alleged the haystack to have been in an improper and dangerous state, through the default and negligence of the defendant; and the third was for depasturing the grain and herbage of the plaintiff with the defendant's cattle. Plea-Not Guilty. At the trial, which took place at the Great Sessions for [392] Montgomeryshire, before Warren, C. J., the Jury found a general verdict for the plaintiff; and in the Easter Term following, Jervis, J., obtained a rule to shew cause, why the judgment should not be arrested, the injury being too remote, or why there should not be a new trial, the verdict being against the weight of evidence. Taunton and Corbett, shewed cause. The Court has no jurisdiction to entertain the former branch of this application. The right of the Court to interpose in the latter case is of modern introduction, and was first conferred by statute, 5 Geo. 4, c. 106, s. U,() which does not empower the Courts at Westminster to arrest the judgment in cases tried in Wales, but merely to grant new trials, set aside nonsuits, and the like. Neither is the application within the spirit of the act; for-, if dissatisfied with the judgment, the party has his remedy by writ of error- to the Court of King's Bench. In applications within the act, the transcript only of the record is sent up, to apprize the Court of the nature of the proceedings, but the record reaming in the Court below, and is not transmitted to the superior Court. But supposing the Court to have jurisrlic [393]-tion to arrest the judgment, the injury is not too remote, and the action is maintainable, as spread upon the record, in Holliucli, v. Warner (Cro. Jac. 665), which was an action on the case against the defendant, for neglecting to repair his fences, whereby his cattle escaped into the close of the plaintiff', and from thence into the close of VV., who sued the plaintiff and recovered against him: a motion was made in arrest of...
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