The Express.
London, England, 1848-01-29 00:00:00

COURT OF COMMON PLEAS._

COX E. GLUE. Cox V. SAINT, Cox E. 21101:SLILY.—
TRIFIPABII WHERE THE FLIGHT TO THE SUBSOIL ONLY 18
LY THE PLAINTII7.—This was an action of trespass for en-
tering and breaking the plaintiff's close, and was tried at
Derby. The verdict was for the plaintiff. A rule nisi had I
been obtained for a new trial. It appeared that the action ,
arose out of the circumstances of the races at Derby being
held in a field called the Syddals, belonging to tee plaintiff,
who was desirous of putting an end to thi m The defend-
ant was an innkeeper, and had erected a 1. oath on the field,
in doing which he had dug holes to insert posts, and so broken
the soil. The corporation by grant, had a right to the close
in question, for purposes of pasturage during certain months
in the year, and it was at this period the races were held by
the permission of the corporation. The qustion was whether
the subsoil alone being at the time in the plaintiff, tree-
pass could be maintained.—Mr. Whitehurst, Mr. Humfrey,
and Mr. Fowler appeared on a former day to oppose the rule,
contending that the original owner of the close could main-
tain trespass for each an injury, as it affected the subsoil.—
Mr. M. D. Hill, Mr. Serjeant Clarke, and Mr. Wadding-
ton supported the rule—There was also a cue of
" Cox v. Saint," in which tho question was the same—which
was to be governed by the decision in " Cox v. Glue." The
court postponed its judgment until another case of " Cox v.
Mousley, ' which arose, out of a similar trespass, was heard.
That ca-e was argued to-day, the same counsel appearing on
both sides. The difference in that case was that the action
was brought against the defendant, the Mayor of Derby, for
entering the plaintiff's close, he being only a visitor at the
races, and there wasno breaking of the soil. The jury returned
a verdict for the defendant, and a rule to show cause was ob- '
tained to enter a verdict fur the plaintiff.—The court now
delivered judgment that in the case of " Cox v. Glue," the
jury had found that at the time in question exclusive posses-
sion of the surface was not in the plaintiff, but that the
subsoil was; and the court was of opinion that the
ruling of the judge, and the verdict were right. Possession
of the surface might be in one person, and the subsoil in
another. It appeared here that the burgesses enjoyed the
right of herbage, by the mouths of cattle, at certain periods,
and that they never enjoyed any other right, and it was I
only necessary that they should have possession of the sur-
face of the soil for the time, when that right was to be en-
joyed. On the evidence, as it appeared at the trial, the
right of the burgesses to the surface was consistent with the
right to the subsoil in the plaintiff, and u damage had been
done to the subsoil by digging, the defendants were guilty
of a trespass, and the verdict was right ; the rule, therefore,
must be discharged. With regard to the Cabe of " Cox v.
Mousley," the alleged trespass was merely for traversing
the close, and the right to the surface being out of the
plaintiff, the verdict for the defendant was right, and that
rule also must be discharged.
COURT OF BANKRUPTCY.