Star. — London, England, 1821-11-08 00:00:00

COURT oIKINCi '3, NOVEMBER 7. RIGHT OP BATHING IN THE SEA. BLuNDELL V. HATTERELL. Thiswas an action tried at Lancaster. The plaintiff is Lord of the Manor bordering on a certain portion of an arm of the sea adjacent to the Mersey; the defendant the proprietor of certain bathing machines plying on that part of the shore in question, for the accommodation of persons going to bathe. The plain tiff, as Lord of the Manor, claimed a right to pre vent the machines of the defendant passing over the beach to the sea without his permission, on the ground that - he was proprietor of the soil ; and to decide the legality of the novel claim thus set up, he brought his action against the defendant as a trespass,.:r. The Jury at the trial found that the plaintiff was pro prietor of the soil, and a verdict was, by direction of the Learned Judge who presided, entered for the plaintiff, subject to the opinion of the Court on the point of law. Their Lordships this morning delivered their judgment on this important question. Mr. Justice BesT, after adverting to the particular facts of this case, said, it was impossible to see any difference, in fact, between going to bathe and going to fish, or for other lawful purposes of navigation:— and it was wholly inconsistent with the first law of the country to say that persons could not go to the sea for these purposes, oser any part of the shore, witliNtt leave of the Lord of the Manor. In this case it had been found, indeed, that the soil was in the Lord of the Manor ; but the Lord of the Manor must originally have received that right from the King, and could not have possessed a power over the soil greater than that possessed by the King, from whom he derived his claim : and he was clearly of opinion, that even the King had not such a right in the soil, on the shore of the sea, as would justify him in prevent ing the subject approaching it for lawful purposes. The sea was, in fact, open to all the King's subjects for all lawful purposes, except at such places and such points as were under particular circumstances occupied by banks and wharfs, or other spots made private property by law. It could not be contended that the sea was the private property of any man, and if the sea was open to all, so must the approach to it be. This common law right, like many other com mon law rights, could only be proved by usage ; and could any one pass along the beach, at any spot where a landing was practicable, without seeing individuals landing in boats from vessels out at sea, from fishing, or other avocations, drawing their boats up, unload ing their goods, reloading, continuing as long as they pleased, and departing when it suited their conve nience, without asking leave of any person whatever? But if the point at present contended for was once establiihed, this could be done no longer. No one could land without permission of the Lord of the Manor. It was true there were certain spots where the shore was not open, but these particular spots were pointed out by Act of Parliament, and did not at all touch the present question. As to the questioi immediately before the Court, that of bathing, the practice of bathing in the sea had existed from the earliest time, and inasmuch as it was beneficial to, health, and promotive of cleanliness, it was to be hoped it would loug continue to exist free from interruption, or improper restraint; but it was said not the prac tice of bathing. machines. True ; machines were comparatively of modern date; but if the sea was open for all other lawful purposes, it was open for bathing machines. If it was not so, decency would prevent many from bathing, and infirmity more.— The modest feibale, without this accommodation, would be excluded front this healthful exercise; the infii m, the aged, and the invalid, would also be pre vented from seeking to regain strength by laving in this bracing element. Fishing in the sea was con sidered a public right, and carrying the ish so caught by land, was a right independent of the Lord of the Manor. This must be taken in support of this right. Another circumstance, strongly in favour of the com mon rights of the subject to the use of the sea and shore, was, that we were a maritime people; and free access to the sea was necessary for the public inte rest. Ships coming from foreign parts frequently found it necessary to send boats on shore to take in refreshments, or for other important circumstances, which by taking away this right, would in future be prevented. He would say nothing about the cir cumstances of shipwreck or bad weather; he would only advert to common occurrences. It might be said that particular places for landing might be marked nut, but the weather might continually in terfere, and render it utterly impossible that vessels a should avail thernselve: of such landing places; and until a Lord of the Manor could restrain the winds and the waves, this common right was absolutely necessary to the existence of the maritime part of the community. Could it be said that the sea shore was not open for any man to walk on for the benefit of his health ? yet, if the right now contended for was granted, a Lord of the Manor might say, though by so doing you benefit your health, you shall not walk here. It might be said that without some re straining power persons void of prudence and de cency would bathe in improper places, where their doing so was a nuisance. If persons were found who could so conduct themselves, the Magistrates, as the law now stood, had a power to prevent and punish such nuisance ; and it was infinitely more desirable to leave this power of prevention in the hands of an independent Magistracy, than to give it to an indi vidual, who would be guided by deep personal in terest. The Learned Judge then proceeded to cite authorities from the ancient and modern Law writers, from Dracton, who wrote on the subject in the time of Henry 111. down to Lord Kenyon, and particu larly dwelt on the opinions of Lord Hale, .Chief Justice Parker, and the doctrine laid down by Has grave in his Law Tracts; and, on the fullest consi deration of the subject, he declared his opinion to be, that bathing in the sea was a common law right, and , that the approach to the sea, for the purpose of bathing, was open to all, and that the Lord of the Manor had no right to interrupt them. He was, therefore, clearly of opinion that in this case judg ment must be entered for the defendant. • The other Learned Judges supported their decision by sliming that the authority in favour of the de fendant rested on the civil law, many of the prin ciples of which were inconsistent with our law.— Bracton had copied his doctrine from Justinian, and in the very same chapter from which he had taken it, were to be found many definitions utterly. and con fessedly incompatible with our common law. if such a common law right lied existed, there would probably have been some mention made of it in the books, but there was no sush authority to be found there. Embankments had frequently been made for the protection of private property, and would such embankments ever have been made had the supposed right existed when the proprietors of the soil must have been liable to repeated annoyances? The case was similar, it was observed by the LORD Otter Jusrice, to that of inlands, and wastes and com mons. Those who lived in their vicinity frequently used them, rode and walked there; but no one ever thought that the right of the owner of the Soil was thus impaired. On these grounds their Lordships were of opinion, that there was no such common law right as that for which the defendant contended ; and as this was the opinion of a majority of the Court, judgment was given for the plaintiff. PHILLIPS AND ANOTHER V. BARBER. In this case, which was tried before Mr. Justice Best at Guildhall, the plaintiff was nonsuited, with permission to move to set aside that nonsuit, and to enter a verdict for the sum of D 34 17s. 6d. It was an action upon a policy of insurance.— , There were several counts in the declaration ; but the lquestion for the decision of the Court was, whether the species of injury sustained by this vessel, and the I place in which that injury was sustained, came within the terms "perils by sea, and other perils?" The vessel was insured in the usual way, and during a period within the time specified in the insurance, the ship requiring some repair was placed in dock and overturned, by which accident damages to theamount already mentioned had arisen to the proprietors. Mr. SEARLE rT movel to-day to set aside the non suit, and to enter a verdict for the plaintiffs. The Learned Counsel cited the case of Fletcher v. Inglis, in 2d Barnewell, and Alderson 15. In that case, which was respecting the loss of a transport in Bou- logne hat bour, their Lordships (observed the Learned Counsel) knew that in Boulogne harbour the tide ebbed and flowed, and the vessel, by order of the Inspector, was placed next the wharf in such a posi tion that, during the ebbing of the tide she was over turned. There was in that case a question whether such an accident could be deemed a peril by sea, because theie the sea had not touched the vessel, and it was determined in that case that such an injury was peril by sea. Mr. Justice BAYLEY.—Then the ebbing of the sea left the vessel unprotected ? Mr. SCARLETT.......YES, my Lord, but she was on dry land when the sea left her. Mr. Justice Batxt.aY.—That was Caused by the reflex of the sea. _ _ Mr. SCARLETT.—But, my Lord, the reflux of the sea could not injure her unless a gust of wind sprung up and overset her. Mr. Justice BATLEY.—In this case it does not ap pear that the injury was occasioned by a sudden gust of wind. Mr. SCARLZTT.—The water had not left her. It, appears from the evidence, that when the vessel was placed in dock there were three feet of water there. But 1 will suppose a case. If the Captain of a ves sel deemed it expedient to lie close to the shore, as happens in the Thames frequently, if the wind overset that vessel while in such a situation, would not that be pe: it by sea ? Mr. Justice BAT/Al.—ln answer to your case, Mr. Scarlett, is the wind operating upon any vessel while on land, and causing an injury to her, peril by sea? Mr. SCARLETT.—The report is that there were three feet water there at the period when the vessel was placed in dock. Mr. Justice BAY LEY.—That you know would not be sufficient to float her. _ _ - Mr. SCARLET r.—No, not to bat her. But in some paits of the West Indies, where it is usual to rest vessels merely upon mud, an accident might arise from a storm of wind, and would not that be peril by sea? It is not the perils to which ships are subject while on their voyage, more than those which are incidental to them while in port, and while preparing for that voyage, that are intended to be guarded against. CHIEF JUSTICE.—In the case which you have cited, Mr. Scarlett, and in all those cases which you have supposed, the injury has arisen in the na tunl course of things. In the case before the Court, the ship was taken into the dock by the art of man. There is an obvious distinction between the cases. I am unwilling, however; to refuse a Rule to shew cause. Mr. SCAELETT.—Then, with your Lordships per mission, I will take•a Rule to shew cause why the nonsuit should not be set aside and a verdict of 041 ' and a fraction entered as contiguous damages. Mr.Jusiice BAILEY.—The safer way will be to enter a verdict upon the second count for the de fendant, and to enter on the first count of the declara tion the £B4 and a fraction as contiguous damages. Mr. SCARLETT.—I will do it in that way with your Lordships' permission. i CHlrsJusticr..—You may take a Rule to shew cause POLICE. MAssicne-House.—Yesterday, a young woma n, named Mary Quin, applied to the LORD MAYOR n‘r relief, under the following circumstances, which she related in a manner that gave uo cause for suspicion of the authenticity of her statement :-Il't' father was; she said, a soldier in the 35th Regiment, 11l which he had served for a considerable. tune. Her mother accompanied him in most of his hardships, but sunk at last under their pressure. She was her self born in St. Helena, in the camp, and was trans ported with her ia.her from climate to climate. At length the Regiment was ordered to quarter at Pa lermo, and her father, who every day felt the diffi culties attending such a charge increase, obtained for her a situation in a respectable family in that city.— After his departure from that station, she remained with the family of Mr. Noble, a wealthy merchant, and was, after some time, married to a fellow-servant. She lived happily for a considerable time, but the Neapolitan revolution having taken place, an attack was made upon her master's house, amongst others which were known to contain much wealth. In the dreadful contest that took place upon this event, her husband and her master were murdered. She fled to a sanctuary, where she was protected for sonic time, and after the tumults had abated, she succeeded in obtaining a passage to England. She had tra velled on foot from a distant sea-port town, and upon her arrival in London, had not sixpence in her pocket. The unfortunate girl answered the inquiry of the L”RD MAYOR, as to the nature of the expectations she had formed on coming to London, by saying that her father was her only dependence, that she had every reliance upon his affection, and could also look to her brother for assistance, had he not embraced the military profession, and departed for a distant country.—The LORD 11AYOR sent an officer to ascer tain the situation of her father, but the result of the inquiry added beyond measure to the young woman's affliction. At the War-Office it was stated that the soldier named in the application had died upon his return to England, and that there was neither pay nor prize-money due. Under these distressing cir cumstances, the LORD MAYOR ordered that the young woman should be taken care of at the Compter until he should have an opportunity of rendering her some service. She is the daughter of an Irishman, an I has of course no settlement in this country, and the LORD MAYOR observed, that the case was one of that ex treme kind which he wondered had . not been con templated in any of the plans upon which the great charitable establishments of the country were founded. GUILDHALL.—A lamentable instance of the dan ger and mischief that ensues from the annual scene of riot and disorder exhibited in the Metropolis on the evening of the sth of November, by the dis charge of fire-arms, fireworks, &c. came under the cognizance of Mr. Alderman LUCAS, the sitting Ma gistrate, at this Justice-room, yesterday.—A youth about 17, who gave his name William Whitaker Court, was brought up on the charge of a respect able looking man, a Mr. Mills, whose son, a boy about 14, had been very dangerously wounded by the contents of a gun-barrel, discharged by the pm i soner on Monday evening in Fleet-market, where a number of disorderly boys and others were ascent bled letting off fireworks, &c. to the great disgrace of the night officers in that district. By the account given by Mr. Mills, his child had been sent on an errand toward that quarter, and was unfortunately passing at the time the prisoner fired the gun-barrel, and received its contents immediately over the right eye: by the violence of the explosion the osfrontis was fractured so as to expose the brain, and the child's eye dreadfully lacerated and almost destroyed. He was taken to St. Bartholomew's Hospital, where he still remains, according to the surgeon's certificate, in a very dangerous state ; but by Mr. Mills's ac count, in such a situation that his life is despaired of. The prisoner, who was in tears during the whole of the examination, seemed deeply affected at the con sequence of his imprudence; and the more so, that lie should have been apprehended and charged, as it appeared he had been by Mr. Mills, in the excess of his feeling, as a common murderer. He protested that it was entirely an accident ; that he did not know the unfortunate sufferer, and did not point the barrel at any one. He had fired it off once before, and had no suspicion of any accident. There were .several other boys letting off pistols and fireworks, and the watchmen standing by offered no molestation. He hoped the boy was not in so dangerous a state as Mr. Mills represented; the certificate of the surgeon was dated overnight, and he (the prisoner) had him self been to the Hospital that morning to inquire, and was told the patient had had some sleep, and was considered better.—Mr. Mills said the answer to his inquiries that morning was, that his son was not worse; indeed it seemed hardly possible that he should be, to be alive. The prisoner very readily ex plained his connection and situation : he was a writing clerk in the employ of a respectable Solicitor in Bloomsbury-square, and lodged in Fulwood's-rents,' Holborn.. The accident happened after he had left, the offi ce, about ten o'clock at night. He had al ready lost h is situation in consequence of it, and begged the Magistrate would not send him to prison, but admit , him to give bail.—Mr. Mills, when questioned by the Alderman as to his intentions toward the prisoner, said ne did not think he should do justice to his feel ings as a father if he did not visit him with all the, severity of the law.—Mr. Payne, the Magistrate's, clerk, observed that, under such circumstances, the usual mode was to commit the accused, until the person should be pronounced out of danger, as it was impossible to say what degree of criminality a Coro ner's Jury might attach to the prisoner's conduct, in the event of the boy's death.—The Alderman accord ingly remanded the young man, until the state of the sufferer should be known, giving directions that should not be put among those that were confined for wilful crimes. Bow-STRSET.— A young gentleman of the name of Townsend appeared at this Office yesterday,charged with a breach of the statute 52 George 111. cap. 63. for preventing the embezzlement of securities," &c. The complainant, Mr. Smith, a military gentleman, applied at the Office on the preceding day, for some means of compelling a tradesman of the name of Sherwin to deliver up to him an acceptance of Sir Charles Nightingale's for £5O, which he (Mr. Smith) had lodged with Mr. Townsend for the purpose of his getting it discounted for him, and upon which Mr. Townsend had raised £8 from Mr. Sherwin. ~.. ~ .. PA INIROTHIR V. SIMMONS. Mr. MAaRYATT, in this case, moved for a Rule to sheer cause why the verdict should not be set aside, and a nonsuit entered. The case was tried at Croydon, before Mr. Justice Buaaouoite, at the last Assizes. The action was brought for not accepting and paying for a quantity of turnips, under the following circumstances :—A sale by auction was held, and according to the condi tions of sale, all persons who became purchasers were required to remove all articles they had purchased on the day after the sale. The plaintiff was the proprie tor of these goods, and the auctioneer was his brother. The defendant, it was true, did purchase the turnips; but finding it utterly impossible to comply with the terms of the sale, he refused to receive them. The Learned Counsel rested his motion upon the Statute of Frauds, which required, either that earnest should be paid, or that the goods bargained for and sold should havebeen accepted or received. The Judge had directed the Jury to find a verdict for the plaintiff; and upon the authority to which the Learned Counsel referred, be now moved for a Rule to shew cause why that verdict should not be set aside, and a nonsvit entered.—Rule to spew cause granted. IN THZ MATTER OF JOSEPH BOURNE. Mr. Serjeaat CROSS, on behalf of the prisoner of this name confined in Lancaster Jail, obtained a Rule to chew cause why he should not be discharged upon baiL The offence for which he was committed was manslaughter. ~~ F; ~ in the evening Mr. Sherwin attended at the 01,, accompanied by Mr. Townsend, and in thei r r „ t i sence Mr. Smith repeated his complaint, (Lai, been desirous to get the bill cashed, he sea ; duced by a Mr. Brown, a friend of his, N fendant, who undertook to have it discounted. M. Smith accordingly gave him the security, h ut could never since get either die money o r it hack. N T . Townsend said that he bad given the hill to Mr' Sherwin, a most reslectahle tradesmar, for th e pt; pose of being discounted, and had received 411;1 1 money ; but Mr. Sherwin, upon inquiry, rot receivii., a very satisfactory accountof the hill. a s to it,thaii'ie• of being regularly honoured, declin e d g i v i ng more of the money until he should be assi ntioi:3" punctual payment. At all events MT. T own , j satisfied that the Magistrates would tell Mr, $„,: 4 that he must look for his remedy in another pt,,,, and, when he brought his action, he (Mr. Tottie,„:,s would be prepared to meet it. Mr. Missrula. sad he would tell him no such thing ; he had iudgea ltir security in the defendant's hands for a specific pu n pose, instead of complying with whiLh,lse fendant) had raised ES upon it, which he had 4, dulently applied to his own use. Unless, theretir t he handed up the complainant his hill immediatek he would commit him. Mr. Sherwin said he troll,/ not give up the bill without being repaid fie inns !! which he had advanced upon it. The dell.ndant w already in his debt to a very comiderahle amount,. 111 r Townsend said he could not, that night, par Pz ES, but he would endeavour to do so on the matt ; After a good deal of discussion, the defendant Rc committed to the watch-hotu,e for that night, directed to be brought up on the following Accordingly the parties appenred in the a:* yesterday, and after some tit ;her exarniiwinii the case, it was postponed until evening, to givelit z time to procure the attendance of Sir C. Nigiidns:: In about an hour after they had left the Oina, h ever, the complainant returned, and, at his ins the defendant was ordered to be diSCh3rVd. UNION-HALL.—The day before the anniversary the Gunpowder Plot, the Magistrates of this O. received a letter from Messrs. Hawes, proptietori an extensive soap-tiictory, near the Old Barge-11 Christ Church, Southwark, reque.ting the aoistr of the police in preventing the making of bo.:fires' the neighbourhood, on the sth instant. The Ma: trates accordingly directed that a number , •f should attend in the vicinity of the pternises of _ soap-factory. Between eight and nine o'clock, I and some officers went to the place, and saw silty% seventy people collected around a large quantnyi the most choice materials for a bonfire, numbers/ tar-barrels being amongst the crinbustibles. fire had just been kindled, and the rest of tiled* gerous sport was about to commence, sv: . .en thud. ficers quenched the fire, and told the mob to di". quietly. Several of the multitude walked away,* the moment they thought the police were out of the reach of the merriment, they returned and rekindled the fire. Near the place where the combustibles hr was a large warehouse, containing 2000 barrels rosin, and other prqperty of immease value. The were also in the neighbourhood a great many of warehouses built of wood, and containing ankh which could not contribute to the extingui•hing of s fire, if so dreadful a calamity took place in so close , and crowded a situation. The oificershad, however, gone but a short distance from the spot selected fee the amusement, and returned just as the fire had been rekindled. They extinguished the fire a second time; but while they were so employed they it. ceived very rough treatment from mai,y (Hun* who ran into the •barges which were lying in the River, and pelted them with coals. The officeitock a waterman, named Manning, into custody, al charged him before the Magistrates with brig been one of the most active of the crowd. Tlelb gistrates heavily condemned the conduct of yews who engaged in such dangerous sports, and bard that punishment would always follow. The defeat was then held to bail. j Forty-three persons, principally boys, were 0:11 , victed orhaving, on the night of the sth of Note her, let off squibs, rockets, Roman candles, tcr , Twenty-three of them paid the fine (20s. each); de rest were sent to the House of Correction for a %% GAME Laws.—Thetwofollowing cases have la • been heard at Knaresborough, and as no appeal been entered against either, the decisions ma! deemed in some degree conclusive. John IVaddn: lon. Qf Harrogate, was charged before M. Lisysos Esq. under the Ist Geo. 111. with a wilful tre,pasot bilton, near that place. The trespass was cid* proved. Waddington, in defence, urged that he out to carry the game-bag, as a hired servant mfr. lonel Lloyd, of Chester, then a visitor at Harrogersi man duly qualified and licerhed. The Nlagigra was of opinion, that although the Act excepts penal duly qualified and licensed from its operation, the is no exception for unqualified attendants, and ttt conviction must follow. Waddington was accon ingly convicted in one penny damages, and Autos shillings costs.--Isaac Todd, of Stavely, butcher, vas charged before Dr. GELDART and M. Lawsos,EiS. with exposing game to sale, he not being auth ensd se to do. It appeared, that Mr. Jackson, of Butte Leonard, a man duly licensed and qualified, coursing ; that he was not able to follow up the (IV that they killed a hare out of his sight, that Todd's riding along the road, and being told to whom t° dogs belonged, took up the hare to carry to the R ' ter, as he said, and was caught with it in his row sion. The Magistrates were of opinion, that de having game in possession, the possessor being a qualified, and not being servant to a qualified mil and not having received it from a qualitiel peso was an exposing to sale within the meaning 01 .0 Act, and accordingly convicted the olfeuderin a/$ pound penalty. DIED. Oct. 27, at his house in Norwich, Dr. Ritby. Nov. 1, at her residence at Burwash, Sussex, in the 0,41 01 of her age, Mrs. Dorothy Jordan, the last surviving of the daughter; of the late Rev. George Jordan, Chancellor Diocese of Chichester. M A ILS THIS DAI".-Altt. MIL Lisboa p° France 1 1 Haintmirgh Gottenbargh 1 Lev IF: . Isl.inds 0 • jainak WatenUrd 0 1 Guernsey and Jersey 1 0 110 1 0 Flanders 2 0 Mrlca 0 0 •--- LONDOli•: Printed anti hi I •" "Igo 7.:411)44.it. _ _ : Dub:iv •hF tis ~~. i.••••• Ni = Tot I'o b T. I TE Deci " "1'( se co gone o'Cl wilt and Tres WU to et POI d 4 and