1855. SHEPHERD

v.

HILLS.

term; because, after the 17 & 18 Vict. c. 5, vessels trading between Jersey and the United Kingdom might be considered as coasting vessels.

PLATT, B. concurred.

MARTIN, B.-We ought to ascertain what were coasting vessels in 1792, with respect to the collecting of the duties. of Customs.

Cur. adv. vult.

PARKE, B., now said-The Solicitor of the Customs has reported to us that vessels trading between England and Guernsey and Jersey have never been considered as coasting vessels" within the Customs Act. Our judgment will, therefore, be for the plaintiff.

Judgment for the plaintiff.

April 18.

In an action

of assault and battery, to

which the de

fendant pleads

DEAN v. TAYLOR.

THE declaration stated that the defendant assaulted the plaintiff, and with a thick stick struck the plaintiff on the head with great violence and felled the plaintiff to the the plea given ground, and then seized the plaintiff while he lay on the by the Comground by the hair of the head, and with his fist struck the plaintiff on the head and face, and then beat, bruised, dragged, and pulled about the plaintiff, whereby the right shoulder-bone of the plaintiff was broken, and the plaintiff became and was for a long time insensible, and was after

mon Law Procedure Act,

1852 (15 & 16

Vict. c. 76, Sched. B.), that "the plaintiff first assaulted the

defendant, who

thereupon

necessarily committed the alleged assault in his own defence," the plaintiff may, under the general form of replication joining issue on the plea, and without replying excess, shew that, although he struck the first blow, the defendant was guilty of excess.

wards for a long time sick, sore, and disordered, and was thereby prevented from attending to his ordinary business or calling; and was thereby obliged and did subject himself to liability for expenses in obtaining medical assistance to cure him of the said injuries.

Pleas, first, not guilty; secondly, " that the plaintiff first assaulted him the defendant, who thereupon necessarily did what is complained of in his own defence." The plaintiff "joined issue" on each of these pleas.

At the trial, before Parke, B., at the last York Assizes, it appeared that the action was brought to recover compensation for a severe injury which the plaintiff had sustained from an assault upon him by the defendant. On the part of the defendant it was contended, that the plaintiff had, in the first instance, assaulted the defendant; and that if the plaintiff relied upon excess, he should have replied it. The learned Judge left it to the jury to say which of the parties had struck the first blow, and whether the defendant had used more violence than was necessary to defend himself. The jury found that the plaintiff had struck the first blow, and they found the second question in the affirmative. The learned Judge was of opinion that the plaintiff was entitled to the verdict upon this finding, and accordingly a verdict was entered for him with 251. damages, leave being reserved to the defendant to move to set the verdict aside and enter it for him, if the Court should be of opinion that the plaintiff ought to have replied excess.

Wilkins, Serjt., now moved accordingly, and also on the ground that the verdict was against evidence (a).-The defendant is entitled to the verdict, for the plaintiff relied solely upon the excess, and he has not replied it. In 1 Wms. Saund. 300 h., note (q), it is laid down "that if the circum

(a) The rule was granted on the second point, and was afterwards made absolute.

1855.

DEAN v.

TAYLOR.

stances are such that the excess does not make the defendant a trespasser ab initio, the plaintiff, instead of replying it, must new assign." [Parke, B.-The rule as to replying excess applies only to the old form of plea. This form is altogether a new one, and is given by the Common Law Procedure Act, 1852 (a). Martin, B.-The form was introduced to obviate the necessity of such a replication.]

PER CURIAM (6).-Upon this point there will be no rule. It is clear that to this plea the plaintiff was not bound to reply the excess.

(a) 15 & 16 Vict. c. 76, Sched. B. 45.

(b) Pollock, C. B., Parke, B., and Martin, B.

Rule refused (c).

(c) See Cockcroft v. Smith, 2 Salk. 642; and Glover v. Dixon, 9 Exch. 158.

May 1.

The plaintiff, under the

license of the owner of the

soil to search

for tin ore,

had, in searching for that

NORTHAM V. BOWDEN.

TROVER for sand, stone, gravel, and minerals.—Pleas, not guilty and not possessed,-on which issues were joined.

At the trial, before Crowder, J., at the last Bodmin Assizes, it appeared that the plaintiff had, by the license mineral, made of orfe Rodd, the owner of the soil, dug certain pits in

certain exca

vations in the Trevague Common for the purpose of searching for tin.

soil. The de

fendant carted The license under which the plaintiff acted was at first by

away some of

the soil which

the plaintiff had so thrown out,-the plaintiff not having abandoned his right to search the soil thrown out for ore. In an action of trover for the removal of the soil:-Held, that the plaintiff had, as against the defendant, a mere wrongdoer, a sufficient possessory title to the mass thrown out to enable him to maintain the action.

The

parol, but afterwards merged in a license by deed. defendant, who, it was suggested, acted under the authority of one Archer, had taken away two or three cart loads of the soil which had been thrown out of the pits, which the plaintiff had excavated, for the purpose of making the search for the tin. It appeared that there was some tin in the sand and gravel which the defendant had removed.

On the part of the defendant, it was contended that the plaintiff had not such a possession of the soil which had been thrown out of the pits, and which the defendant had removed, as was sufficient to support an action of trover. The learned Judge left the case to the jury, who found a verdict for the plaintiff with 58. damages, but his Lordship reserved leave to the defendant to move to set the verdict aside and enter a verdict for him.

Montague Smith moved accordingly (April 18), and contended that the plaintiff had not such a possession of the mass thrown out of the pit as would support the action, for that such portion of the soil as had been thrown up was not severed from the realty; and that the action should have been brought by the owner of the soil, whose title to the realty could not have been disputed.

Cur. adv. vult.

POLLOCK, C. B., now said-We are of opinion that there ought to be no rule in this case. It was an action of trover in respect of some ore mixed with gravel which had been dug out by the plaintiff under a license from the person claiming to be the owner of the soil. The defendant carted away two or three cart loads of this gravel. The real litigant parties were probably the persons who respectively claimed adversely the soil as against each other, although the actual parties on the field of battle were the plaintiff, who was licensed by one of them, and the defendant, who

1855.

NORTHAM

บ.

BOWDEN.

1855.

NORTHAM

v.

BOWDEN.

acted at the suggestion, though perhaps not under the direct authority, of the other party. The plaintiff relied merely on his possession, arising from his having dug the gravel and ore under a license from the owner of the soil, as against the defendant, who was a mere wrongdoer. Now the defendant, although he professed to have acted under the authority of some other person, instead of bringing forward the title of that party, rested his case upon a supposed defect in the plaintiff's title. Upon examining the case as reported to us by my learned Brother Crowder, it appears that the plaintiff had dug the gravel, in which there was also a quantity of ore; and one point was, whether there was ore of some value in the mass so carted away. The jury found that there was. Under these circumstances we are of opinion that the possessory right of the plaintiff was sufficiently made out to maintain an action of trover against the defendant who was a mere wrongdoer.

PARKE, B.-I think, as I observed at the time the motion was made, that the plaintiff was not only entitled to maintain the action in respect of the tin ore which was part of the mass thrown out, but also that he was entitled to succeed in respect of his possessory right in the sand and gravel, which, by permission of the owner of the soil, he was at liberty to examine for the purpose of separating the ore from it. I think he had a right to the entire mass as against a wrongdoer; and the defendant, not having proved his title, must be considered as such. The plaintiff's possessory right, therefore, not only applied to the tin as a part of it, but to the whole mass till he had abandoned it.

PLATT, B.-The plaintiff had reduced into his possession the whole mass of soil which he had thrown out of the pits, and by so doing he acquired a sufficient title to it as against a wrongdoer.