« PreviousContinue »
bringing offensive trades into his wise disturbed, a certain line of neighbourhood, the introduction road, from Margate to Canterof offensive smells, dust, or noise. bury, in the parish of St. John the Nor was it to be considered how Baptist, to the great annoyance much a man could endure with- and obstruction of his Majesty's out injury to health, but how subjects. much he could tolerate without Mr. Bolland stated the case for inconvenience, and that at all sea- the Crown, by which it appeared sons, whether in health or sick- that there had been established, ness, whether feeble or robust. for more than fifty years, a line of Now, there could be no doubt road through Birchington, from that the incessant din and pitchy Margate to Canterbury; but that smoke of a smithy must be a nui- this being considered of late years sance to persons not accustomed too narrow for coaches, it became to them, and so situated as the necessary to have it widened. Acpresent seemed to be witii respect cordingly, in the years 1809 and to the plaintiff. Nor was it any 1810, that measure was adupted; answer to this, that the plaintiff and besides the ancient or Roman endured the annoyance of steam- road, there were two others callengines and foundries before. ed the Blue an: Red roads. Upon The nearest of them seemed to be the subject of these roads there at the distance of 400 yards, while were already pending between this smithy was as near as eight : the present defendants and others but even allowing that they were no less than seven actions and four nearer, the defendant had no indictments; one party complainright to add to causes of distur- ing of the obstruction set up by bance already existing. Because Mrs. Macnamara, and a profes- . a man endures one inconvenience sional gentleman named Hill, who without complaining, no right can had join:ly attempted to stop up be established on the ground of the communication of the road in his patience or forbearance to ag. qnestion. Mrs. Macnamari, it gravate it, or to add another. appeared, lived somewhere on the The question for the considera- road side, which being widened, tion of the jury therefore was, she at first endeavoured to diswhat according to the evidence suade the passengers from going was the state of the facts—was that way; but not succeeding in this smithy brought to the plain- this, Mr. Hill (who was also intiff's premises, and was it so near cluded in the indictment) urged as to annoy his comforts ? --Ver- her to stop up what was called dict for the Pluintiff.
the Red Roul, and accordingly
trenches were thrown up, palings The King v. Macnamara and and fences were erected, and caranother. This an action riages passing that way were in founded
upon indictment consequence upset, and subjectcharging the defendants with hav- ed to other accidents. Mr. ing raised, or caused to be raised, Bushell, a surveyor, immediately certain palings and fences, and remonstrated upon these obstrucwith having dug up, and other. tions, and insisted upon their
remoral, but to no purpose; Mrs. The foregoing facts were fully * Macnamara contending that the proved by a variety of witnesses, passage was an innovation, and among whom were Messrs. Bushthat the Blue Road was the proper ell, Taddy, Woodward, Pasmore, line of communication. He pro- &c. ceeded, however, by force, to re- For the defence, Mr. Gurney move the obstructions in ques- made an ingenious and animated tion, but they were soon after- reply, and called nearly twenty wards rc-cstablished. Mr. Bushell witnesses in support of his stateagain remonstrated, but in rain; ment. and he accordingly gave notice, Lord Ellenborough having that if the obstructions were not summed up the evidence, the removed in twenty dass, he would defendants were found Guilty. again proceed as he had before done. Accordingly, on the 13th Court of King's-Bench, Wednesof February, he went to the spot, day, July 10.-Ilume, esq. 1. Oldaccompanied by some men, where acre. This was an action of treshe found the defendants marshal- piss. The plaintiff resides at ling their labourers, and Mr. Hill, Pinner-park, near Stanmore: the in particular, ordering them not defendant is huntsman of a pack tó mind what Mr. Bushell said. of hounds employed in the BerkeThe parties on cach side then ley hunt. The trespass complaincommencel, the one to fill up, el of was, that the defendant the other to dig the trenches, and broke and entered a close belongalternately to pull down and re- ing to the plain iff on the 4th of move the obstructions, the other April 1815. to replace them. During this The Attorney-General said, that struggle, the defendants threat the Berkeley hunt had been esened to send the other party to tablished about 30 years ago by gaol; but they persevered, and the noble Earl who bore that title, succeeded in their purpose of re- and it had afterwards been conmoving the obstructions. These, tinued by Lord Sefton. At that however, after some time, were time it was conducted in the most again raised, and it became ncces- regular and inoffensive manner, sary to bring the present action. and a field of noblemen and genThe learned counsel, having ex- tlemen was always asseinbled, patiated upon the nature of the who restrained their sports to offence in question, proccelled to other parts of the country, withcall a variety of witnesses, sur- out wanton destruction of proveyors, farmers, carriers, news- perty in the vicinity of Stanmore men, persons who tithed the road and Watford. The hunt then fell side, who repaired and improved into the hands of subscribers, and it, and individuals, some of whom its character was completely had known and traversed the road changed, for any Cockney who which had been obstructed for could hire a horse, or any grooin more than seren, others for ten, who could borrow one from his fifteen, and even fifty years pre- absent master, repaired to it for a viously.
day's sport, to the great injury of property in the neighbourhood of town defied all obstacles but such the metropolis, where the soil was as were calculated to resist an inill suited to the purpose. The vading army. In truth, that part Berkeley hunt and its trespasses of the country to which he had were not unknown to his Lord- referred was at present out of the ship, as actions against some of protection of the law ; no rights the members had been tried a few were held sacred, and no property years since before him at Hert
property country, partner
was secure; it was rather like a ford, and it was hoped that no- border district between two hosminal damages to settle the right tile countries, than the centre of would have been sufficient. In a land where the law restrained this expectation, however, the in- wilful and repeated aggressions. jured party was disappointed, and A notice from many noblemen some proprietors of land were and gentlemen, and among them under the necessity of instituting from the defendant, dated in 1808, new proceedings against the warning the members of the whipper-in, who was now in Berkeley hunt from their grounds, confinement for the damages and was the first piece of evidence : costs, though he would soon be after which Thomas Shirley and relieved by the operation of that Joseph Carwood were called to panacea for debtors of all kinds
prove, that the defendant on the the insolvent act. This whipper- 4th of April, with about 30 sportsin was the son of the present de- men, rode over two fields belongfendant, who by this action would ing to Mr. Hume, and destroyed probably be placed in the same turnips to the value of 40s. or situation as his son ; but the in- 50s.: Mr. Hume had become the dividuals whose property had been proprietor of the fields in question destroyed had no other remedy to about three years ago. which they could resort. The Lord Ellenborough observed, learned counsel therefore hoped that the notice, being dated in that the jury would give such da- 1808, could not apply to these mages on the present occasion as
closes. would give some more effectual Mr. Gurney, in addressing the protection. To such an extent jury for the defendant, complained had the destruction by the gen- that the Attorney-general, in his tlemen of the Berkeley hunt been speech, had introduced statements carried, that the noblemen and which had very little ith, much others, proprietors of estates near exaggeration, and no relation to Stanmore and Edgware, had been the present cause. Like the compelled to associate themselves Berkeley hunt which he had defor general defence, and the Earl scribed, he had ridden over a of Essex and the Marquis of large field without restraint, Abercorn had been compelled to trampling down all obstacles that put up extraordinary fences round presented themselves to his imatheir property: the latter had ac- ginative course. The fact howtually put up chevaut-de-frise, and ever was, that the hunt at present had dug trenches, but in vain, was confined to a few individuals for these mighty hunters from of great respectability in the country, who were disposed to stream, under which the plaintiffdo as little injury as possible, and had made a gravel walk, and had to make compensation whenever placed a tent, and used to recreate reasonable complaint was made. himself and family by sitting It appeared in evidence that Mr. there on the summer afternoons. Hume had only recently become The defendant, as he before obpossessed of the fields on which served, had reserved to himself the defendant had trespassed, and the right of walking in the orchard the ignorance of the huntsman of also, and he used this right to the this purchase had led to it, for annoyance of the plaintiff and fathe plaintiff was the only indivi- mily, and not as a gentleman dual in that parish who objected would have done. This led to to the diversion which the de- some altercation, when, to show fendant was conducting.
the inalignant disposition of the After a few remarks from Lord man, he came with his workmen Ellenborough, a verdict was found one day, and cut down all the for the plaintiff-damages 40s. willow trees which were the chief
object of the plaintiff's pleasure. Hance v. Stone and others. This Now, although he was the owner was an action of trespass for cut- of the orchard, he was not warting down a parcel of willow trees, ranted in doing this, for he had in an orchard at Brixton, adjoin- leased it to the plaintiff for five ing the river Epher. Mr. Ser years, under certain conditions ; jeant Best stated, that the plaintiff and although he had reserved a was a respectable tradesman in great deal for himself, he had not London, and the defendant Stone, reserved the trees, and therefore who was the principal defendant, was a trespasser for cutting them a magistrate of Surrey, but whose down during the continuance of conduct disgraced the name and the term. character of a gentleman. The The lease being read, and the plaintiff was in possession of a demise proved, Mr. Serjeant On-, house at Brixton, adjoining to slow called two witnesses to prove which was an orchard belonging that the trees were beyond the to the defendant, and which he bank, and not within the limits wished much to possess as a con- of the orchard, but failing to estavenience to his house. This the blish this point, the jury found a defendant agreed to let to him ; verdict for the plaintiff-Damages but, knowing he desired it much, 501. made a Jew's bargain with him, for he made him pay 10l. an acre for the land, and reserved to himself all the fruit, with liberty for Court of Chancery, Wednesday, his own fowls to walk, and him- Jun. 24.--Ex-parte Dyster re Moself and all his company; so that, line. This was the second arguin fact, the plaintiff had the inere ment in this case, which is of the use of it as an object of pleasure utmost importance to brokers and from his house. There happened merchants in the city of London. to be some shady willow trees at The facts were these :-Mr. Dythe bottom over-hanging the ster, a sworn broker, was also a
partner in the house of Moline, not real as a merchant in the who traded in Spanish horse- same transaction; and this byehides, and the latter having be- law being authorised by the stacome bankrupt, Mr Dyster tnte, had all the force of a posiclaimeil a debt of nearly 20,0001. tive enactment. In support of which was resisted by the assig- the second position, it was connecs, as illegal. Mr. Dyster then tendeil, that the bond and oath presented a petition to the Lord restrained the petitioner from Chancellor, praying to be allowed acting contrary to the before to prove his debt, and the ficts mentionel rules and regulaalleged in support of this appli- tions, and, consequently, that the cation formed the subject of the transaction in question was impresent argument.
moral, and as such was prohiOn the part of the assignees it bited by the principles of the comwas contended, by Mr. Hart, Mr. mon law. Bell, and Mr. Montague, that the On the part of the petitioner, petitioner was not entitled to Sir S. Romilly, Mr. Cooke, and prove ; first, because as a broker
Mr. Roupell, contended, that the he could not act at all as a mer- gentlemen on the other sitie had chant; and, 2dly, on the ground argued upon supposition of a hye of the immorality of the trans- laiv, which had all the effect of a action. To establish the first statute law, whereas the statute point, the learned Counsel insist- in question, which was purely a ed on the construction of an ex- local statute, gave no power pired statute of King William, whatever to the city of London which was renewed by a sta- to make hye laws, but only to pretute of Quicen Anne, whicre- scribe regulations as to the conby it was enacted, that no per- ditions on which a person should son should act as a broker in be allowed to act as a broker. It the city of London, unless sre- was, indeed, a most gratuitous cially authorised by the Lord assumption that there existed any Mayor and Aldermen, and sub- bye-law, and if such bye-law ject to such rules and regulations had actually been made, it seemed for good behaviour as they should extraordinary that the bond should think fit and reasonable. By vir- take no notice of it. All that the tue of this statute, the Lord Mayor and Aldermen had power Mayor and Aldermen were stated to do was, that as soon as they to have made a certain bye-law, found man acting contrary to and to have imposed on every the conditions of the bond, they person who applied to be ad- could enforce the penalty against mitted a broker, the necessity of him. But it had been said there executing a bond, with certain was an oath, and that the Court conditions, and of taking an oath would not assist the petitioner to for the faithful discharge of his recover his demand, in violation duty. The bye-law, it wils ar- of that solemn engagement. This gued, contained the regulations was niuch the most serious part to which the broker was to be of the case, not only to the indisubject, namely, that he should vidual concerned in this question,