justification covered the whole declaration; but the jury found a verdict for the plaintiff, with one farthing damages:-Held, that the justification was prima facie an answer to the seizing and carrying away in the first count; and that the plaintiff, if he intended to rely on some of the articles being fixtures, ought to have replied that fact; but that the justification was no answer to the trespasses stated in the fifth count:-Held, also, that, as the jury had not acted according to the misdirection, but had given damages, the Court would not grant a new trial, on the ground of the misdirection. Twigg v. Potts,

89

2. The defendant, a schoolmaster, improperly, and under a claim for money due for schooling, refused to allow the mother of an infant scholar to take her son home with her, and the son was, though frequently demanded by the mother, kept at school during a part of the holidays, but there was no proof that the infant knew of the demand or denial, or that any restraint had been put upon him; an action of trespass for assault and false imprisoment having been brought by the infant:-Held, that it was not maintainable. Herring v. Boyle,

377

3. Trespass for breaking and entering, on the 1st January, 1830, and on divers other days and times, &c., one close, called the Railroad, and one other close formerly used as a railroad, &c. Pleas (amongst others), that A., B., and C. were owners of the closes on each side of the locus in quo, which was a railway made by the plaintiffs under the authority of an act of Parliament; that the adjoining closes contained minerals, and that, according to the custom of the country, the minerals could only be conveniently conveyed by means of a railroad across the locus in quo. The plea then justified the trespasses for that purpose, and for the convenient and

necessary occupation of the adjoining closes. Replication, protesting the soil and freehold, de injuria absque residuo cause. Another plea alleged that the occupiers of the adjoining closes had, for twenty years, as of right, and without interruption, used and been accustomed to use the pri vilege and easement of passing and repassing, &c., and laying down railroads across the plaintiffs' railroad. Replication to this plea, traversing the claim of right. New assignment of other and different purposes, to which there was judgment by default. The particulars complained of trespasses committed by the defendants in April and May, 1830, in a close "which now is or heretofore was a rail or tramroad," and destroying the plates of the same, and laying down others. The evidence was, that the defendant, in February, 1829, took up some of the plates of the plaintiffs' railway, and altered the course of part of it, carrying it over their own land, and made a transverse railroad, which crossed the site of the od railroad, and also the new railroad:-Held, that the particulars were sufficient.

Upon the issue with regard to the more convenient occupation of the adjoining closes, there was much evidence on both sides, the plaintiff's giving evidence to shew, that, in constructing the transverse railroad, the defendants had an ulterior object in view. The Judge left it to the jury to say, whether the transverse railroad was constructed bona fide for the more convenient occupation of the closes, or for some other object:-Held, that this direction was right.

Upon the issue with regard to the twenty years' enjoyment of the easement:-Held, that the defendants were bound to shew an uninterrupted enjoyment, as of right, during that period; and that the plaintiffs might prove, under that issue, applications

by the defendants during the twenty years for leave to cross their railroad, and that it was not necessary for them to reply such licence specially under 2 & 3 Will. 4, c. 71, s. 8. Monmouthshire Canal Co. v. Harford,

614

4. A., the owner of certain freehold houses and land with a yard adjoining thereto, demised, by parol, several of the houses. The tenants were in the habit of passing over the yard, and using a common pump and privy there. There was no evidence whether the yard formed part of the demise or not. In trespass by one of the tenants against the landlord for excluding him from the yard, the Judge left it to the jury to say whether the landlord, at the time of the demise, had reserved the yard:Held, that this was a misdirection, the question being whether he had demised it, and not whether he had reserved it. Herbert v. Thomas, 861

5. Trespass is not maintainable for holding an attorney to bail, notwithstanding his privilege. Noel v. Isaac,

TURNPIKE. See ACTION.

TURNPIKE TOLLS.

753

Where tolls are payable by persons passing along a turnpike road, and an act of Parliament exempts and prohibits the trustees of such road from repairing a certain portion of it, and imposes the liability on others, but is silent on the subject of tolls, such portion still continues for the purposes of toll to be a part of the turnpike road. Phipson v. Harvett, 473

USE AND OCCUPATION.
See EXECUTORS.

USER.

See EASEMENT.

VENDOR AND PURCHASER. On a sale by auction of leasehold

1. The insertion of venue in a declaration contrary to rule 8, Hilary Term, 4 Will. 4, is not a cause of demurrer. Farmer v. Champneys, 369

2. The improper insertion of venue in a declaration, contrary to the new rules, is not an irregularity for which the declaration can be set aside; the course is to apply to a Judge at chambers to strike it out. Townsend v. Gurney, 590

3. The venue cannot be changed on the usual affidavit, where part of the demand arises on a bill of exchange. Walthew v. Syers,

596

4. An application to change the venue on special grounds, must be made the subject of a distinct motion, and where the venue has been improperly changed on the affidavit in a case where part of the demand was on a bill of exchange, such special circumstances furnish no answer to an application to discharge the rule for changing the venue. Dawson v. Bowman,

594

5. Where, in an action for a libel, the venue was laid in London, and the defendant moved to change it to Lincoln on the usual affidavit, and on a rule being obtained to bring back the venue, it appeared from the affidavit that the libel had been published in London as well as Lincoln:-Held, that the plaintiff was entitled to have the venue brought back to London, without entering into an undertaking to give material evidence there. Clements v. Newcome, 776

6. In an action of covenant on a

Where a way had been used adversely and under a claim of right, for more than twenty years, over land in the possession of a lessee who held under a lease for lives granted by the Bishop of Worcester:-Held, that under the act 2 & 3 Will. 4, c. 71, this user gave no right as against the bishop, and did not affect the see.

Held also, that, as the user could not give a title as against all persons having estates in the locus in quo, it gave no title as against the lessee and the persons claiming under him, and that no title was gained by an user which did not give a valid title as against the bishop, and permanently affect the see.

The declaration for disturbance of the above-mentioned right of way alleged that the plaintiff was possessed of a certain wharf, close, and premises, and by reason thereof ought to have had, and still of right ought to have, a certain way from this wharf, close, and premises, into &c. (describing the way), as to the said wharf and premises belonging and appertaining: -Held, that the declaration was sufficient, and that the way might be

2. Where several defendants appear by different attornies and counsel, the latter are entitled to crossexamine the witnesses, and address the jury separately. Ridgway v. Phillip,

415

3. A. conveyed to B. a close of land, and afterwards conveyed the same close to C., who mortgaged it to A. In trespass by B. against C. and others for breaking and entering the close, it was held that A. was a competent witness for the defendant. Simpson v. Pickering, 527

4. The wife of a publican, living sixty miles from Lancaster, was subpoenaed to give her evidence at the assizes there, and 21. 2s. was given to her for expenses. She did not make any objection to the amount, as being insufficient. On shewing cause against a rule for an attachment against her, it appeared that she had an infant in bad health at the breast; and that the inside fare of the coach from Liverpool (the road through which town was the most convenient route to Lancaster from the place where she resided) was 17. 1s. The Court thought that she might reasonably require an inside place, and that the money was insufficient, and they refused to make the rule absolute for an attachment against her. Semble, that the affidavit for an attachment

for not appearing as a witness, in pursuance of a subpoena, need not shew that the witness was called in Court on the subpoena, especially if the witness never did attend the assizes. Dixon v. Lee,

645 5. Where a local act empowers the directors and overseers of the poor of a parish to sue and be sued in the name of their clerk, in an action for goods supplied to the directors, a person who was one of the directors at the time when the goods were sup

plied is a competent witness for the defendant. Fletcher v. Greenwell, 754

6. It is in the discretion of the Judge whether he will permit a witness to be recalled. Adams v. Bankart, 681

7. Where it appears clearly that the attendance of a witness at the trial would have been of no use to the party subpoenaing him, the Court refused to grant an attachment against him for disobeying the subpoena. Dicas v. Lawson,

934