1839.

DODDINGTON

v.

BAILWARD.

the 20th September, and after that the power of the umpire would lapse, and he could not revive it. It is therefore necessarily implied by the bond of submission, that the umpire should have the power of enlarging the time at any period between the 20th August and the 20th September.

Then with respect to the notice, that also branches off into two divisions, because it is said, first, that the defendant had no notice of the enlargement of the time; and, secondly, that he had no notice of the disagreement of the arbitrators. As to the last objection, he had notice on the production of the award made by the umpire; and as to the notice of enlargement, it appears, not only by the authorities, but by the facts of this case, that he had ample notice, because it appears that he had notice given to him when the performance of the award was demanded; and, further, that he made no motion in Court, founded on the want of notice, but he laid by until the present motion was made, and he now brings forward his objection as a means of getting rid of the attachment which the defendant is liable to have sued out against him. As no authority, therefore, is in existence that a written notice is requisite, the case which has been cited, shewing that knowledge only of the enlargement is required, is an answer to the objection which has been raised, and, therefore, no sufficient ground has been shewn by the defendant for resisting this attachment.

As to the excess of authority by the umpire, the only point is, as to the share of the defendant; as to that, the award is nugatory, and goes for nothing; but that will not vitiate the other part of it. I perfectly coincide, therefore, in opinion with the rest of the Court.

Rule absolute accordingly.

1839.

HIGHAM V. RABBETT.

KELLY had obtained a rule, calling upon the defendant In an action of to shew cause why a verdict should not be entered for the trespass quare plaintiff on the second issue in this action.

clausum fregit, the defendant pleaded a general right of

way over the

land in question all purposes. The jury found a limited right, at certain times,

at all times for

and for certain

purposes. Held, that the

defendant was

not entitled to a general ver

dict, or to have entered distributively,

the verdict

under the new

It was an action of trespass, for breaking and entering the plaintiff's close, and cutting down and destroying certain gates, posts, &c. The defendant pleaded, first, not guilty. Secondly, a general right of way by prescription for the defendant, in respect of his being owner of a certain wood, and for his servants with carts, carriages, horses, &c., at all times and for all purposes over the land in question. The third and fourth pleas were immaterial for the question now before the Court. The cause was tried before Littledale, J., at the Summer Assizes for the county of Suffolk, and the jury found a verdict for the plaintiff on the first issue, as well as upon those raised thirdly and fourthly; and, in respect of the second issue, found specially, that the defendant possessed a limited right of way, at certain seasons of the year, with carts, for the purpose of question, on carrying timber from the wood in question. The learned judge took the verdict, the defendant contending that it should be entered distributively for him; while the plaintiff, on the other hand, urged that it amounted to a decision. in his favour, the trespass complained of not being proved or found to have been committed in the execution of the limited right found to exist.

Stephen, Serjt., B. Andrews, and Palmer, now shewed cause, and submitted, that the verdict was substantially a finding for the defendant, as it decided the real and important question in the cause in his favour. The right of way was found to exist, and although it was not proved that the act complained of was committed in the execution of that right, it might be presumed to be so committed, and the trespass must be considered to have been justified.

rules; but the Court granted him a new trial on the particu

lar issue in

payment of costs, both

parties having their pleadings.

leave to amend

1839.

HIGHAM

V.

RABBETT.

A question arose, whether the plaintiff ought not to have new assigned, for by omitting to do so, he had admitted that the gates removed were an obstruction to the right which the defendant possessed. The variance which existed between the right proved, and that set up, must go to the merits; and, as the proof in point of fact shewed that the merits were in favour of the defendant, he was entitled to the verdict. Tapley v. Wainwright (a), Benington v. Benington (b), Ballard v. Dyson (c), Cowling v. Higginson (d). [Tindal, C. J.-Morewood v. Wood (e), decides, that if a prescription be not proved as it is laid, the party fails altogether. I think, therefore, that the defendant is not entitled to have the verdict entered for him generally on this issue.] The finding, then, might be entered distributively. The case might be taken as if there were several pleas, and the trespass alleged committed under one of them, which set up the right to carry timber. In Knight v. Woore (f), upon a plea of a right of way to fetch water and goods from a river, the jury having found the right to fetch water and negatived the right to fetch goods, the Court ordered judgment to be entered for the defendant as to the right to fetch water, and for the plaintiff as to the right to fetch goods. The 4th rule of Hilary, 4 Wm. 4(g), was in the following "Where in an action of trespass quare clausum fregit, the defendant pleads a right of way with carriages and cattle, and on foot in the same plea, and issue is taken thereon, the plea shall be taken distributively; and if a right of way with cattle or on foot only shall be found by the jury, a verdict shall pass for the defendant, in respect of such of the trespasses proved, as shall be justified by the right of way so found, and for the plaintiff in respect of such of the trespasses as shall not be justified." Sec

terms.

(a) 5 B. & Ad. 395; 2 Nev. &

M. 697.

(b) Cro. Eliz. 157.

(c) 1 Taunt. 279.

(d) 4 M. & W. 245.

(e) 4 T. R. 157.

(ƒ) Ante, Vol. 5, p. 201; 3 Scott, 326.

(g) Ante, Vol. 2, p. 325.

tion 5 provided, that " where in an action of trespass quare clausum fregit, the defendant pleads a right of common of pasture for divers kinds of cattle, ex. gr., horses, sheep, oxen, and cows, and issue is taken thereon, if a right of common for some particular kind of commonable cattle only be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved, as shall be justified by the right of common so found, and for the plaintiff in respect of the trespasses which shall not be so justified." Section 6 was in these terms. "And in all actions in which such right of way or common as aforesaid, or other similar right, is so pleaded that the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively." Upon these rules the question of entering the verdict must depend, but it was urged that the allegations in the plea might be taken distributively, and that the defendant would be entitled to have the verdict entered accordingly.

Kelly and Gunning, in support of the rule, contended, that upon the first point raised as to the general entry of the verdict for the defendant, there could be no doubt: Drewell v. Towler (a) confirmed the general proposition, that where a prescription was set up, it must be proved as it was alleged. With regard to the distributive mode of entering the verdict, it was submitted that that was authorized by the new rules in cases only where something was found by the jury which was alleged in the plea. Here, however, the right found was not alleged to exist, and it would have been impossible for the plaintiff to go to trial prepared to meet all supposititious cases which might be raised on the pleadings. The verdict could not be entered distributively, as the record now stood, but it must first be amended. That step should,

(a) 3 B. & Ad. 735.

1839.

HIGHAM

v.

RABBETT.

1839.

HIGHAM

v.

RABBETT.

however, have been taken at the trial, and then the Court would not have allowed it, unless the trespass proved came within the limited right established. It would be seen, however, that such a course must be attended with great hardship upon the plaintiff. The case of Cowling v. Higginson had been decided since the new rules, and was clearly in favour of the plaintiff, for it shewed, that he could not have new assigned, as the defendant suggested.

TINDAL, C. J.-This plea is general, claiming a general right of way for the purpose of reaching this wood, for whatever purposes and at whatever times the defendant might think fit; and the question is, whether, as the jury have found only a limited right for the purpose of carrying timber, at certain seasons, it can be so moulded as to enable the Court, under the new rules, to enter the finding distributively? It appears to me, that the rules of pleading cannot be so construed as to enable us to do this. We might, indeed, distribute it by qualifying it and leaving out a part of the allegations contained in it, but we are not called upon to do so. If the evidence had shewn a right to carry anything through the land, as alleged, we might have entered the verdict distributively, as finding a footway, or some other of those rights stated; but I think that we cannot import into it, or add to it, anything that is new. I think, therefore, that this application is beyond the scope of the new rules; but, if the defendant is anxious to have his limited right found, the rule may be made absolute, on payment of costs, for a new trial; on the second issue only the defendant having leave to amend his plea, and the plaintiff to amend his replication.

Rule accordingly.