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The King v. ROBERT KNIGHT, Esq. and others. INDICTMENT for obstructing a highway, stated, that Indictment
for obstructing defendants, on the 27th December, in the seventh
a highway, the reign, &c., with force and arms, unlawfully and inju- charging," that riously did dig, stock up, and remove, and caused to be moved a culdug, stocked up, and removed, the gravel, soil, and rub- vert in the pabish, then being upon and over a certain brick culvert, for posite to a mill the convenience of his Majesty's liege subjects passing there, in a highthere along, in the parish of Studley, in the county of leading from Warwick, opposite to a certain mill there, called Studley good, on moMill, in a certain King's common highway, there leading tion in arrest
of judgment. from Studley, in the said county of Warwick, to Henley in Arden, in the said county, &c. Plea, not guilty. At the trial before Lord Tenterden, C. J., at the last Warwickshire assizes, the defendants were found guilty.
Denman, C. S., now moved for a rule to shew cause why the judgment should not be arrested, upon the ground that the description, in the indictment, of the road alleged to have been obstructed, was repugnant and bad. The allegation is, that the defendants removed a culvert in the parish of Studley, in the county of Warwick, opposite a mill in a highway there, leading from Studley to Henley, in the same county; which is certainly not a direct allegation that the highway in question is in the parish of Studley, and county of Warwick, nor even is that inference necessarily deducible from it. The only positive description of the bighway is, that it leads from Studley to Henley; now, from and to are both words of exclusion, Rer v. Gamlingay (a). The result, therefore, is, that the highway is in neither of the parishes mentioned, but lies between, but out of, both of them. The case cited seems quite decisive of the point, for it was there held, that an indictment against the parish of B., for not repairing a road leading from A. to B. was exclusive of B., and therefore bad. And further, that it was not aided by a subse
(a) 3 T. R. 513.
quent allegation that a certain part of the same highway, situate in B., was in decay. The same rule of construction had been previously applied to an act of parliament, in the case of Hammond v. Brewer (a). That case arose upon a clause in a turnpike act (6), which gave directions for repairing the road to and from the town of Battle; the only question was, whether the act was intended to include or erclude the town of Battle itself: and the Court were clear that the act of parliament was intended to exclude the town of Battle. Both those decisions seem to have been founded upon an authority in 2 Rol. Abr. (c), where it is said, “if A. is indicted for stopping up a way at D., leading from D. to S., it is not good, because it does not allege the way to be in D., but to lead from D., which excludes the vill.. And in M. 21 Car. I., such an indictment was quashed." Upon these authorities it is submitted that this indictment is bad, and that the judgment upon it ought to be arrested.
Lord TENTERDEN, C. J.-The indictment in Rer v. Gamlingay was very different from the indictment in this case. The only description of the road there was, that it was a road leading from the parish of A, to the parish of B. Here we have much more, because the allegation is, that the defendants committed an obstruction in the parish of S., opposite to a mill there, in a highway there, leading from S. to H. To construe the words “to” and “from," in that sentence exclusively, would be to render insensible and absurd, that which is otherwise sensible and intelligible: and why should we go out of our way to produce such a result ? If the defendants, in the parish of S., have obstructed a highway, they are guilty upon this indictment, and I think there is an abundantly plain allega: tion of their having done so. In common parlance and acceptation, the words “ to” and “ from” have, very frequently, an inclusive meaning(d); and I am by no means (a) 1 Burr. 376.
(c) Indictment (M) pl. 19. (b) 26 Geo. 2, c. 54.
(d) Cowp. 717, acc.
satisfied with the general rule laid down in Rer v. Gamlingay(a), that they ought to be construed exclusively. The case in Burrow is also very different from the present. The object of the act there, was to impose a toll. Many of the clauses described the roads as leading from, to, and through towns; but the clause in question omitted the word through. Lord Mansfield observed, that it was neither usual nor convenient to erect toll gates in the middle of great towns, which the commissioners under the act had done: and upon those grounds the decision of that case clearly proceeded. For these reasons, I am of opinion that this indictment may be supported.
Bayley, J.-I am of the same opinion. The objection in Rer v. Gamlingay was, that it did not appear from any thing stated in the indictment, that any part of the road was in the indicted parish, because the first allegation that the road led from A. to B., was clearly bad in that respect, and the second allegation, that part of the same road, situate in B., was in decay, referred back to the first, and therefore could not aid it; for both plainly alluded to one and the same road. And even there Lord Kenyon appears to have yielded to the objection with regret, and rather from the idea that he was bound by the authority in Rolle's Abridgment (b), than from his own conviction of the validity of the objection. Her
Here, however, the objection does not apply; for there is in this indictment, a very sufficient allegation that the defendants have obstructed a road in the parish of Studley. The other Judges concurred.
Rule refused. (a) 3 T.R. 513.
stopping is alleged at Kensington, (6) And see Halsey's case, Latch, but the way is alleged to be from 183. Halsey was indicted “quod and to K., so there K. is excluded. apud Kensington cum quodam mu- As lease for three years, from to coctili obstupavit altam viam re- Michaelmas excludes Michaelmas. giam ducentem de London ad Ken- At another day, another indictsington; and the indictment was ment was reversed for the same quashed by Jones and Whitlocke, cause, by Doderidge and Whit(absente Doderidge), because the locke."
GEORGE BUTCHER V. JOHN Butcher.
ZRN 794 A remainder TRESPASS for breaking and entering a close of the man enters upon a party in plaintiff, called Hill close ground, and a certain other intrusion (a). close, situate, &c., at Maidmorton, in the county of Bucks, Held, that
and breaking gates, feeding with cattle, damaging soil trespass lies against the
with horses and carriages, cutting down trees, and carrying intruder, al
away branches. Plea, not guilty. And as to the second though he retain the close, lib. ten. of defendant. The replication took issue actual
on the plea. At the trial before Garrow, B., at the last assizes for the county of Bucks (6), it appeared, that the plaintiff was the elder brother of the defendant; that on the 10th of August, 1761, George Butcher, the father of the plaintiff and defendant, was admitted tenant of a copyhold messuage and land, comprising Hill close ground, habendum, to him the said George Butcher, the elder, William Scott Butcher, his second son, and George Butcher, his eldest son (plaintiff), for the term of their lives, and the life of the survivor and survivors of them successively. In January, 1807, George Butcher, the elder, died. William Scott Butcher, the second son, remained in possession of the locus in quo, from the time of the death of George Butcher, the elder, till his own death in January, 1827. William Scott Butcher, by his will, dated 22d December, 1826, devised the locus in quo to John Butcher, the defendant, in fee, and appointed him sole executor of his will. On the death of the testator, the defendant entered into possession as devisee under the said will, but on the 10th March last, the plaintiff and his men cut asunder the chain which fastened the gate of the close in question, and entered thereon, and began to plough and sow the field, whereupon, defendant ordered plaintiff's men out of the close, aud on their refusing to go out, he cut part of the gear of the plaintiff's horses. Verdict for the plaintiff, with leave to move to set aside the verdict, and enter a nonsuit.
(a) F. N.B. 204 D.
Storks, Serj , and F. Kelly; for the defendant, Robinson, and Munro.
Robinson, for the defendant, now moved accordingly. It must be admitted, that the plaintiff was the rightful owner of the close in question, William Scott Butcher having no right to devise to the defendant, inasmuch as he had only a life estate in the premises ; but the plaintiff, by virtue of the entry, had not such a possession as would enable him to maintain trespass.
For that purpose, it was necessary that the plaintiff should have actual (a) and exclusive possession (6). Here the entry of the plaintiff not being acquiesced in by the defendant, the plaintiff had not obtained such possession.
Lord TenTeRDEN, C. J.-There is no doubt, that if he who has the right enters, he can maintain trespass. Formerly, trespass was brought to try title (c); and the mere circumstance of the plaintiff's going apon the land and using it, is an entry, although he says nothing (d). The other Judges concurring,
Rule refused (e). (a) Vide 2 Roll. Abr. 553; Com. A. having forfeited for treason, Diy. Trespass, (B).
made a gift in tail, and after the (6) Vide Wilson v. Mackreth, 3 death of the donee, A. was restored Burr. 1824 ; Smith v. Milles, 1 T. by act of parliament: this conR. 480; Wiltshire v. Sidford, post. structive seisin of the donee was
(c) Ejectment is founded upon a held sufficient to entitle his wife right to enter, and make the demise to dower. Arundel v. Willington, to the nominal lessee. Whoever, T. 9, E. 3, fo. 24, pl. 17. The therefore, can maintain ejectment, common action of trespass for may enter peaceably without ac- mesne profits, after an hab. fac. tion; and upon such entry the poss., is founded upon this prinlegal possession vests with rela- ciple; and if the plaintiff claims tion to the period at which the to be remitted to a constructive title of the party accrued ; so that possession anterior to the demise he may now sue for the mesne in ejectment, so that he can no trespasses; which brings the right longer avail himself of the estoppel of possession, and the lawfulness created by the judgment in ejectof the entry directly in question. ment, he raises the question of Thus to a plea of lib. ten. at the title in the old way: time of the alleged trespass, plain- (d) Co. Litt. 245 b.; 3 Tho. C.L. tiff replied that his father had been 59. disseised by defendant, and that (e) And see Taunton v. Costar, he had since entered upon defend- 7 T. R. 431; Turner v. Meymott, ant. Bro. Tresp. pl. 80. Et vide 1 Bingh. 158; 7 J. B. Moore, ib. pl. 127, 169, 187, 202, 227, 574, S.C.; Girdlestone v. Porter, 367, 423; Jayson v. Rash, i Salk. Woodf. 542; Nowell v. Roake, 209; Rogers v. Pitcher, 6 Taunt. ante, 170. 202, 7; i Marsh, 542. So where