Welch against Nash
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1807 |
| Date | 05 May 1807 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 394
IN THE COURT OF KING'S BENCH.
See De Pontieu v. Pennyfeather, 1814, 5 Taunt, 640; Brittain v. Kinnaird, 1819, 4 Moo. 60; R. v. Phillips, 1866, L. R. 1 Q. B. 657.
welch against nash. Tuesday, May 5th, 1807. Under the 19th section of the General Highway Act, 13 Geo. 3, c. 78, a new highway must be set out before an old one can be stopped up; and it is not sufficient that another old highway was widened in parts to answer the purpose of a new road. And if a new highway be not set out before the old one be stopped up, the legality of the orders of the justices for diverting the old road and stopping it up may be questioned in an action of trespass, notwithstanding such orders were confirmed by the sessions on appeal, stating the fact of a new roadi eing set out in lieu of the old one. The defendant cannot justify, under the general issue, the cutting the posts and rails of the plaintiff though erected upon the defendant's own land; there being no question raised as to the property remaining in the plaintiff. [See De Ponthieu v. Penny feather, 1814, 5 Taunt. 640; Brittain v. Kinnaird, 1819, 4 Moo. 60; R. v. Phillips, 1866, L. R. 1 Q. B. 657.] In trespass, the first count was for entering one close of the plaintiff called the Shrubbery, and another close formerly part of a public highway, in the parish of Claines in the county of Worcester, and for destroying the shrubs, &c. and breaking down and destroying the gates, and walls, posts, rails, and fences upon and round the said closes, and for carrying away and converting the same to the defendant's use. A second general count was, for the like trespasses in breaking down and destroying the gates, &c. of the plaintiff in the same parish, not laying them to be on the plaintiff's (a) This was afterwards stated to be the case of Sex v. Norris, M. 4 Geo. 2, 1 Barnard. 385, when mention was made again of this case in the following term, upon a rule calling upon Mr. Gaborian, to shew by what authority he claimed to be Mayor of Saltash; which rule was obtained by the Attorney-General, grounded upon the invalidity of the above-mentioned election. It was then also stated from the Bench, that no mention was made of this case in the MS. notes of that period; nor were the affidavits of it now to be found in the Crown-Office. The rule against Mr. Gaborian was afterwards made absolute, without any further opinion expressed by the Court. 3 EAST, 395. WELCH V. NASH 395 closes. Pleas 1st, the general issue. 2dly, a justification to the several trespasses; that in, through, and over the several closes in which, &c. there was and yet is a public carriage highway; and because the said gates were wrongfully erected in the said closes and across the said highway, and obstructed the same, and the said walls, posts, rails and fences at the times when, &c. were wrongfully erected in, upon, and across the said highway there, and obstructed the same, &c.; the defendant, in order to open the said highway, committed the alleged acts of trespass, [395] and removed the materials to a small distance from the place where the same had been so wrongfully erected and stood as aforesaid, and left the same in a proper place for the use of the plaintiff. The replication joined issue on the 1st plea, and traversed the public highway pleaded in the second plea; and new-assigned that the defendant broke and entered the said closes and committed the several trespasses declared on for other purposes and on other occasions than those mentioned in the second plea, and out of the said supposed ways therein mentioned : and also for that the defendant committed the trespasses in a greater and more excessive manner and degree than was necessary for the use and enjoyment of the said supposed ways. The rejoinder took issue on the plaintiff's traverse of the public highway, and pleaded not guilty to the new assignment; upon which issue was joined. And at the trial before Sutton B. at Worcester Lent Assizes 1806,--a verdict was found for the plaintiff upon the 1st and 2d issues, with Is. damages; subject to the opinion of this Court, as to the 2d issue, upon the following case. And on the last issue a verdict was entered for the defendant: but if this Court should be of opinion that, as the pleadings stood, it ought to have been entered for the plaintiff, the verdict was to be altered accordingly, with Is. damages. The...
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