Tinkler against Rowland
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1836 |
| Date | 28 April 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1010
IN THE COURT OF KING'S BENCH.
tinkler against rowland. Thursday, April 28tb, 1836. In trespass quare clausura fregit, issues were joined on three pleas : 1st, of a public carriage way; 2dly, of a public bridle way; 3dly, of a public foot way. The jury found a verdict for the plaintiff on the first issue, and for the defendant on the third ; and the Judge, without the consent of the plaintiff, discharged the jury from giving a verdict on the second issue. The Court granted a new trial, although the plaintiff, at the beginning of the trial, had agreed that the damages, if any, should be merely nominal. Trespass, quare clausum fregit. Pleas : 1st, a public carriage way : 2dly, a public bridle way ; 3dly, a public foot way. The replication traversed the rights of way, on which the defendant joined issues. On the trial before Lord Denman C.J., at the Surrey Lent Assizes 1835, the counsel for the plaintiff, at the outset, agreed that the damages, if any, should be merely nominal. The jury found a verdict for the plaintiff on the first issue, and for the defendant on the third : but, after having retired for many hours, they told the Lord Chief Justice that they could not agree as to the second issue; and it appeared by the testimony of a medical man that one of the jurymen was ill. Upon this, his Lordship directed the verdict to be taken as above, on the first and third issues, and discharged the jury from giving a verdict on the (b) 2 Str. 915. And see Morgan \. Palmer, 2 B. & C. 729; Shaw v. Woodcock, 7 B. & C. 73. 4 AD. &E.869. GOODMAN V. HARVEY 1011 second, without the consent of the plaintiff. In Easter term 1835, Thesiger, for the plaintiff, obtained a rule to shew cause why a new trial should not be had. Channell now shewed cause. The objection, on which the rule was obtained, is, that the Judge has no power, [869] except by consent of parties, to discharge a jury from giving a verdict on one of several issues. That objection is well founded, only where the issue, on which the jury are discharged, is material, as the parties are situated. Now, the only matters left to be determined by the second issue were the damages and the costs of the particular issue (a)1. The damages are here immaterial, because the...
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