The Express.
London, England, 1863-11-21 00:00:00

TEE 'EXPRESS, SATURDAY EVENING,

ILate lutelligetut.

COURT OF QUINN'S BENCH.—Nov. 20.

Sittings i• Banco.—(Before lard Chid Justice Cockburn,
and Justices Wigbtmao, Blackburn, and Mellor.)

THE JOCEIT CLUB U. ARGUS.— EARL OF COVENTRY V. WILLER
This cane before the court oe demurrer. It was as
action for trespasi, brought by the Earl of Coviretn, on of
the members of the Jockey Club. against the defendant, the
sporting correspondent of the Morning Poet, better known
as "Argue," for trespassing on the enclosed ground at New-
market. The defendant had by his pleas claimed a right
to he there and to those pleas the noble plaintiff demurred.
Mr. Main, Q.C. (with whom was Mr. Hamm), appeared
on behalf of the noble plaintiff in support of the demurrer
to the pleas, and he objected absolute) y to all of them, as
setting up a right which nobody ever before beard of. The
first plea en up a right for all pones to go over the plain-
tiffs hied at such time. as hone wee were holden there at
their free will and pleasure, for the purpose of witneesieg
the base races. Such • claim of right over what was DOE •
highway for all her Majesty. subjects, and at particular
periods of the year, was one that be ventured to assert did
not, sod weld not exist, nor bad be been able to find In
any of the books anything which is the slightest degree ap.
proached it
The Lord Chief Justice said the claim was not limited to
the passing over the land in going from one pelat to
another. but the defendant claimed a right to remain on
the land.
Mr. Justin Wightinan said it was not • right of way for
carrying a man on for the discharge of his ordinary ken-
' nee, but that of merely going to the races, if it meted at
all. The time sod place of holding a fair wee limited, bat
what was there to limit the holding of thee. ram?
Mr. Mellish said nothing. He might he woes, bat he
had not been able to find an authority that would make the
right of way claimed strictly a highway. A highway was
maintaioed In the welt but it wee absurd to en that if
a gentleman allowed the use of a road through his perk for
certain days, fix., and shut it up at night, that that was a
dedication to the public, and made the parish liable for the
maintenance of the road.
Mr. Justice Blackburn instanced the case of the parks
in Loudon which were open all day and closed at night.
Mr. Mellish amid be was not aware there was Noah a
right as that claimed, and be felt he need not weary their
'ardente in going through the authorities's sopping his
view of the case. The only 01111 he was stde to fad that
was at ell like a limited dedication was ' the Kin v.
the inbabilsota of Northampton" (in the 2nd Mash sad
Bair" O. 262).
Mr. Justice Wightmen said the right alleged by the
plea was that whenever races were held upon the bad,
he might go upon the bed, and remain there to EMMEN
them. It was not to pan over the lead to go to some further
place, but to go on the land, and be there for the paves
of witnessing the men That was eemethieg more Um a
mere right of way. The learned mussel referred to • see re.
lative to • footpath Indio. to Wlaltbynnurt, m " Viten
Abridgment," page 510, in support of his a:gamest. With
regard to the custom if the existence of • riatitby all the
public, this was bad, for it waswasbad, laid down m .Mach v.
Rawlings," (god Henry Blackstone, page 393), that
a custom in all her Majesty's subjects could
not s‘irt. That was • case where • right was est up
under • custom for the inhabitant. of • parish with now
reeidenta to play in a certain close of land at cricket and
other games. It was there dietinctly laid down that the
custom only applied to the inhabitants of the pariah, and not
even to occultism' residents. The learned counsel thee re
forted to the plea reantive to the unsoosiduct of gismos who
attended tease, and in eoar.latiee said that the defendant
could not nee claim as a modom beloeging to the parishionse.
for he wee not a resident io the parish.
Mr. Quin, on behalf of the defendant, maid his leaned
friend had is this case adopted sa unusual Doerr for bin,
viz., that of abating the pleas, end he asked is phis
Logone. were ever such pleas set up before? Now be
might ask, was ever there such a right estop before en that
claimed by the Jockey Club, to deprive • petleeme al tbe
pleasures attending the sport dhows raying became he bad
written as article that was deadening to them !
The Lord Chief Justice said that was not on the record.

Mr. Qoafs—No, my lard ; but he Mated it In *rower to
hie learned Mend's remark that there were no cases in point.
The was the line cam of the hied that had occurred—it was
the first ores when that powerful body, the Jockey Chtle,
bad turned a gentleman off the course at Newmarket bemuse
be had simply commented is the newspapers on the Jockey
auk
mid that wm sot so.
Mr. Justice Blackbersaeld that wu out the rail oneatica
before the court, bat whether the plaintiff bad a nght to
Imp a men off the team
The Lord Chief Julio, add they bed known io the, earlier
peeked of their lime soca a &keg as a toll taken forgoing on
Ha race COMIIII.

(.2;iiriaid that would he in reference to a private
course. What he wee dealing with was a public emus,
web se Newmarket, where bores noel were held during the
earliest periods of Foolish history, sod whoa they west to
trill the snort would be owtowirked at their to=
(Luckier.) At Goodwood &ay one could be turned
course. The room there were held by nerrobwiffla of the
noble owns.—

TiroloriChiof Justice 'aka if tolls von not left it

Mr:Quoin—That's • private mew
The Lord Chief Justice—ls not Newmarket private?
Mr. Quoin—Subject to certain rights which he was about
to discus. There might be a highway when races were
bald, and for the purpose of 'them, them, and if the
owner ekes to dedicate it ha • metricted geese, it wee •
perfectly valid dedication.
The Lied Mid Juan—Yes ; but the lemma counsel
must p further, and say that the defendant bed not only a
right to go along them, but to go there for the purpose of
staying.
Mr. Qedn—Yes ; issidessal to the acing, but nothing
man. Beppu • gentleman to be a great enthusiast about
racing, and hs chose to dr dicta his laud to the purpose of
I racing, as be might presume, had been the cue in this
instance, that would be a vabd dedication to the public.
The books were full of instances of partial dedication* of
highways to the public. A man might dedicate a highway
is any Dauer he dame, and mile such restrictions
and remarvatioes a• he passed.
The Lcrd Chief Justin said Mr. Mellish's contention
was, that there could not be • partial dedication as regarded
time.

Quota said that Imam* so. He should be able to
gooteautherities oo the other side.
The Lard Mist Justice—He did not my there might not
be dedication in other respeota, but that so far as dedica-
tion was cmioerned it must be a dedication for all time.
Mr. Jutios Biacikburn said he 'Maki Lie to me an
authority. that where • man &slighted &pleas of (wand for
the people to look at bores teeing, and that only, and at Co
other time, that that was binding mi his beirs.
. .

The learned eoutisaltites quoleti; number of own Is sap-
port (Allis proposition. The only grounds on which the right
could be claimed were costes' and dedication, ad there
were three kinds of highways—one for foot asesmegera, as-
other a bridle path and a third for carriages ; and there
was no principleof law which preveated an owner in fee
from dedicating to the public under whatever restrictions
he chose to adopt and for any par Linder purpose ; and that
why might not laud have been dedicated for wit-
rectug ? The principle bad been ado=
• reset nee relative to the right of the freemea of
W • certain piece of ironed adjoiniog that city for hone
racing on a particular day is the year. Is that came the
Court of Exchequer held that all time meant a reasonable
time for holding horse races. Horse raring being • well-
known public game them was nothings illegal in a man's
dedicating his land to that purpose. There might be • right
of way canoed to particular purposes, such as agriculture.
Mr. Justice Blackburn said he should have thought that
that from He very nature must be • private way. The pub-
lic would hardly have a right to go and plough cep another
mar's lend.
Mr. Justice Wightman mid it was difficult to see bow the
trcould have • right of way to plough another made

Yr. Quoin said be did not see any substantial differ-
ence, whelk., the grant was a public or private right of
way. There wee the power to dedicate.
The Lord Chief Justice said he thought there was all the
difference ia the two.
Mr. Quail; having called attention to end quoted the caw
iworiog his view of the rase as to the right of making •
limited dedication.

The Lood Chief Justice said • partial dedicative could not
be eoeverted into • general one.
Mr. Quain submitted that if a partial dedicatim. could be
made in ens case why there should be any objection to the
Brut of • way atbe public for the purporne of going to and
returning from horse mom.
The Lord Chief Justice said he thought the,* were many
difficulties surrousding it. A dedication to the public in-
volved the parish is the espies, of maintaining the void.
Coald that, he asked, attach where there was no pasta
dediestioe

Yr. Quoin said he could not see why it should not be so.
The liability to repair might be is accotdaoce with and
corresponding to the dedication.
Mr. Justice Wightinaa said it was difßcolt to speak of
regains is this cue. Han was a claim to walk all over the
close.

Mr. Quain laid be was not aware that their lordships
ever beard of person being indicted tor the noe•mpair of a
footway.
The Lord Chief Justice said be had a painful recollection
of such a case, and its Latin's four or live days. (Liughtar.)
Mr. Qlll6O said the only way he could show the right was
by quotmg a multitude of mess of partial dedication.
Tim Lord Chief Justice said he thought this learned
counsel was in this diAlculty, that it must be a dodged and
clear right of way. Here it was claimed to go all ova the
heath.

NZ Quail) mid that, according to " Liwania v. Bullock "
(6 Q. 8., p. 406). there might be • highway over a close and
over every part of it.
The Lord Chief Jutios mid that did not get rid of his
difficulty. That wee a defined way.
Br. Quite acid ask if *boy wankel to whams a horse
lace, It would be relies to ha as the highway.
The Lord Chief Jailing maid hi claimed this not wily as •
high way, but also to ohstract it.
Mr. Guam mid them was ample authority for it.
Mr. Justice Blackburn laid what the learned counsel
waisted to set up was sots right al way but • Hight for tiwe
polka to hi than for sportier purposes. It was use • *id
of way, and that was lir ihiealty.

Yr. Qualm Mid that there might be a right of way over
the dose sad es every part et it.
The Lord Chief Justine raid this was tot a close, but an
copes spies. Did the learned couoael ever ►sr of a right of
way slog sad over every part of a lane sees like a com-
mon?
Mr. Qneia—A defined highway might be very extensive.
The learned counsel then quoted several cases es applicable
to the holding of fairs.
Mr. Justice Shmkbura said be did not see how they op-
plied to the case of horse races.
Mr. Quaiu—They did, supposing, as the defendant said,
those mom bad been held from time immemorial. _ _ .

The Lord Chid Joetioe -Do boa Mate 4.1 in a legal
_ - _

Mr.Qua/a—Yee. They were held so far back as when
ichard returned from the Hol► Land.
Mr. Justsce Blackburn—l thought it was in J►mae L's

Mr. Quahi—James I. built a house there, bat the need
bad existed years Ware that. It was drat msetiosed in
Hoary VIII.'s time am a plaos when hones acee had tom
bolds. for many years before.
Mr. Justin 131sekbarn—I take it you hays proof of that
ascent custom?

Mr. tisalw—iwi, and eatisfectory of a right of way over
the dupe sad awry part of it. A tonunon was a d4ned
plaeti however arteneive..
The Lead Chief Justice asked it the lammed onus! 0011•
tended that is sash a ease if the owner built a hones on the
land it could be knocked down as an obstruction.

ieTkrtisaT;rii ricrieieloorriiiatthey would
are to light out when the ease came on *a the isms.
Mr. Justioelfirekbum asked if there was a ease as the
poke with sash such. dediestion.

Mr. Quit mid there was not.
The lord ChisfJ italics said that no two Individuals of the
public could take a home down to Newmarket and have •
rsce between them without being subjected to the rules and
that the owner imposed.
r.t.tawsuain thee referred to the outdo* of custom, but
the eras wee opposed to the learned °mussel as to their
▪ Lard Chief
in this ems
Justice Cockburn said—l should be disposed
to think if use you ou establish that there was a Guthman
right to held noes spun the ground of soots meat or
eatios at so remote • period, aed the fed el he bevUlt=
relied ever glees, that ft raises a customary right, asd
ombiseselly and Issidentally to ft is the right
.of the public
to go and with= them ; but the find 'sometime hes to he
established before the
.other arises The mew* of Finch
and Bawling, must aside us and must be biedisg on this
court se ceseludye far the meant peruse, end for the pro-
p:Aloe that there ounot be • customary right is ell the
Queo's subjects generally, but must be coodned to the
inhabitants of a particular district, bemuse the right of
the Ques's subjects is postal is pert of the emu= law,
and not the law of • particular district. On the authority
of that sees tdu Quein's Its prepreitios is disposed of, and
it is not memory to consider the other.
Yr. Jetties Wisim mid he us of the sense OriliOno.
end for thsemlessossons.

16:JagisTBlackburn said that, when once you establish
there is rigitt of sporting, ft follows there ia not a right to
go and ladt at ethers sporting.
Mr. Judea Mellor concurred.
Judgmeat for the plaintiff, on the pleas of custom and
right.

00IIRT OF EXCIIEQIIFIR.—Nov. 20.

Sittings in Basoo.—(Baton Lerd Mist Baron Polio& and
Banos Bronson, Manna, and Pianti.)

THE LTIVINIT-01111:11AL O. mune ABD °THUM -TIES

The Attoreey-General, rise some further obsereatioes,
brought his long. able, and elaborate argument to • close
with the following remarks :—I cannot but think, he said,
that your lordships will deal with this case in a way satiefac-
tory to both the crown and the parr The TWAIN: has
bra fully osardmed, and I have set the slightest doubt
that year ladehi Wombat is this ease, sad the way in
which It has ham dealt with, will be entailed to end receive
hereafter UM same raper which Ina justly been paid to the
loss urea "sense by the American courts ea is similar
,set to ears. I most say that those &ranee an most
boustable is the sentry and the tribanah fern which
they proceeded, bemuse that act was pored under peculiar
eirenundanese, when the irritation sad animosity arming
her the war of indepeadenos had not pared away—
when the retest rierelutions in the Usited Sham and
Preassarars fresh in their memories—when the sympathy of
the Wheiennuany ma breast high with revolutionary Fauns,
aid se doubt when warty all the other power of Europe
11saw opposed to that nation. Under these oireumetaner
it saes that W hiagton caused to be inneduced that aet,
land is every chit trial which has rim place nadir It, the
judges of the United States have maaffested a lofty and
most upright determination to give it full sailfair effect—to
snide it wither in the direction of popular Was, nor of pre-
judice, nor of mercantile isterest ; nor, en the other hand,
to stern it in favour of the republic or eassemowealth
test the subject. We do not wish you to Ironies
at Act in favour of the crow. against the subject,
but we do desire that it shall be established by year ford-
skips' judgment that these great and important objects, to
promote which that set was passed, have ben effectually
accomplished by the aid, iced that the great scum of mis-
chief white is wee interred to remedy yew be effectually
repressed by thermstruction which your krdships may think
the set should righteously receive, that the whole matter
shall not torn ont to have been 'Mindy misunderstood by
those who were eugsged in legislating up= it, and that the
statute is incapable of being applied to • case like the
must.
The court rose immediately upon the conclusion of the
learned Leadsman's. argument.
---
COURT OF PROBATE AND DIVORCE.
Nov. 21
(Before the Judge Ordinary.)
mum, 1•1131 MT CALLED caturroki, e. citAirrrox.
Ten was • petition by Victoire Brie for a declaration of
nullity of her marriage with Sir Jobs FiennesOrampton on
the ground of his impotence. TM respondent filed an maser
traversing the allegations in the petition.
Dr. Deana, Q.C., and Dr. Spints appeared for the petl-
homer ; and Mr. It James for the respondent.
The details of the ',Advisee given in support of this pets-
ties ere, of course, unfit for publication. It was stated by
Dr. Deane in his opening, and proved by Mr. M. W. Belle,
the father of the petitioner, that the ceremony of manna,
wee solemnised at St. Petersburg on the 31st of March,
1860, the respondent being then her Majesty's envoy extra-
'ordinary and minister plenipotentiary at the court of
Russia. The cohabitation was at first in St. Petersburg.
sod then far a short time io Ludas, the petitioner having
come to England to be presented at wart. They stayed
&ring their visit in England at Mr. Banes hoar in North
Audieystreet, and then returned to St. Petersburg. Is
May, 1861, they again visited England, and rayed at Mr.
Belfe's house in thyroour-street. The petitioner was thee
@otiosely ill, sad Sir Charles Lurk was complied, but
Mr. and Mts. Brie were not then made aequaiuteri
with the eaters or the cause of her illness. As
soon as she was pronommed out of danger she
joined Sir J. Cm/aphis at St. Petersburg. and afterwards
wept with him to Madrid, where they lived together
until April, 1863. They thee west to Paris, and stayed et
the Hotel Anaheim Mrs. Belle received a telegram while
they were at the hotel, stating that her daughter was due
pronely ill, and west immediately to Paris and bad an in-
terview with her. She thee for the first time leer ot the
cause of her daughter's illness, and returned to Ludo*
immediately afterwards and informed Mr. Belts of it. Mr.
Brie thereupon mailed off, be said, to Paris for the purpose,
of speaking to Sir John ore the subject. Mr. Balfs, who wee
evideotly eery much distressed while giving bin eviduce, and I
said he felt so unusually nervous that he could not rearm-
her dates accurately, gave a full account of this inter-
view' which took place in the gardens of Tuileries. In
the 0001.10 of it he asked whether Sir John bad any re-
proach to make against his daughter. Sir John rid, " No,
not the slightest ; she is as booed as the day.* Mr. Belie
rid she was so dangerously ill that be was amid of
losing her, and therefore he should be obliged to separate
them d that Sir John had better get a lawyer and
druid himself as brt he could. To this Sir Jobs replied
I" I cannot defend myself. I will not defend myasM.° The
petitioner then returned to her own family sad this suit
, was instituted. Aa order had been greeted by the late
I Judge Ordinary that the affidavit of the petitioner should
be remind instead of her oral examination, and her
affidavit was put is evidence. It was not reed is court,
I as the learned judge said that ha bad already read it care-
fully. Sir Charles Locock, Dr. Fair, and Mrs. Jones were
explained in support of the allegations in the petition. No
questions were naked in cross-examinatioa.
I His Lordship said—Taking all the circumstances of the
cue into consideration, and especially seeing no signs what.
eve to lead me to cosalude that there bas been anything
like collusion, but, on the contrary, hl believing in
the sincerity of the parties, I prominent a dames of nullity,
, with oosta.

MIDDLESEX SESSIONS.
(Before the Asehrlant-Judge.)
Aire Henderson, 2G, lady's maid, late in the orrice of
Lady Doraville, of ho. S, Connaught-place, West and who
guilty os Tuesday to two indictments, via., of steal.
Firgerinp sod two watches, value 8001., the property of
Charles Frederick Hancock, and also of stealing are
emerald ring and two lockets, value /571., the property of
William Henry Ryder—wu placed at the bar to receive the
judgment of the court.
Mr. Metcalfe and Mr. F. H. Lewis (lostameled by Lewis
and Lewis) were for the prosecution;
cam Mr. Sleigh for the
; and Mr. Poland watched the on the part of
7,6lllfomville.
The Assiatant-Judge made some Inquiries as to the
manner I. which these robberies had been effected, and was
informed that the goods had been sent from Ir. Hancock
for Lady Doraville, and that being entrusted to the cue of
the prisoner she had stolen them.
The Assistant-Judge said Mr. Hancock could carry or his
bruises@ Is his own way, hut it seemed to him to bold out
great leseplation to servants.
Mr. Illetealfe said each articles were only eves to the
amain of Lady Danville, and one or two ohm persons of
the highest respaseatilltiy.
The deadost-Jodie said the coed had sews eery me-
Isimisly thing to es, which we. to perform the duty out
"So them ea that acacias, sad to pre leotesee aline a
who WI beesa nest tupeatobie alimietee„ They
dress
eight Yates Lab DeeniUs wee a big of totem