The Sun.
London, England, 1838-11-03 00:00:00

WELLS V. DAY.

Mr. PLATT and Mr. LEE appeared for the plaintiff, the
ATTORNEY-GENERAL for the defendant.

Mr. PLATT said this action was brought by Mr. Wells, who
was formerly Clerk to one of the Judges of the Common
Pleas, against the defendant, who carried on the business of a
house-agent in Bishopsgate-street, to recover damages for a
wanton and oppressive trespass. In the early part of last year
Mr. Wells took of Mr. Day the house 19, Westmorland-place,
City-road, for a year, the rent to be paid quarterly.
The rent for the first three-quarters was paid, though not with
the punctuality that Mr. Day required. On the 22d March
Mr. Wells removed with his family to Upper Park-place,
Islington-road. On the 29th the defendant (the son of the
landlord) went to the house and saw Mr. Wells, and stated that
he had come for the rent. Mr. Wells told him that he should
have it on the following day. Mr. Day said No, he must either
have the rent or the goods. Mr. Wells desired him to wait
until he tried to get the rent, but he refused, and went up
stairs and seized the best bed, and also a table, desiring a
porter, named Hall, to walk off with them. Mr. Wells, at
last procured the money and paid 5/. 17s. 6d., the rent being
SI. 155., and half-a crown being paid to Hall, who was repre-
sented to be a broker. Now he (Mr. Platt) submitted that
these goods were never liable to be distrained or followed,
because it had been decided that goods could not be followed
unless at the time of their removal rent was due but
Mr. Day, who was well acquainted with the technicalities of
the law, chose to assert a pretended right to distra'n
the goods, which he really did not possess. This was not the
mode in which a man ought to assert his rights, and Mr. Day's
object was evidently to annoy Mr. Wells. This was the trespass
complained of, and the defendant had pleaded not guilty. He
would now proceed to prove the eirenarstanees in evidence ;
and when that was done, he was confident the Jury could have
no difficulty in giving a verdict for the sum extorted, and such
damages as they thought would compensate Mr. Wells for the
improper act of Mr. Day.

Wiinesses were then called, to prove the facts offered IZy
Mr. PLATT.

The ATTORNEY-GENERAL afterwards addressed the Jury on
the part of the defendant, contending that a more trumpery
action had never been brought into a Court of Justice, and
that no real grievance had been sustained ; for it was quite
cle.tr that there was a debt of 5/. 153. due, and that a palpable,
attempt had been made by Me. Wells to defriud Mr. Day,
by a clandestine removal of his go,ds, for the purpose of
eva ilngla distress. _ _

Ar:PLATT said that his Learned Friend bad not put that
on the record.

The ATTORNEY-GENERAL did not know that it was neces-
sary. even if he wished to adopt it as a substantial defence.
Mr. Justice LITTLEDALE said it had been decided in two or
three cases that it was necessary it should be put on the record.
But th, se goods were removed before the rent was du:i.
The ATTORNEY- GENERAL said that at all events he had a
clear right to urgi, this tiipic to the Jury in mitigation.
Mr. Justice LlTTLEDALE—Undoubtedly.
The Learned Gentiernan then proceeded with his address,
commenting on the evidence at c.insiderable length, contend-
ing that there bad clearly been a removal to avoid a distress.
It would be for his Lordship to say whether, as the rent had
not actually become due at the time of the removal—although
it was in contemplation of the rent becoming due and to pre-
vent the distress that these goods were removed—whether
this was a case within the statute. If a tenant might remove
his goods to avoid a distress, then in strict law the proceeding
of Mr. Day could not be justified ; but he trusted if that should
be the opinion of his Lordship, that the Jury would give only
nominal damages.
Mr. Justice LITTLEDALE said that in his opinion in point of
law the Act of the 11th Geo. 11. did not apply to a case of
removal where the rent had not become due; and if it did
apply, it ought to have been pleaded and put upon the record.
The question for the Jury to decide was, what, under all the
circumstances of the case, was the proper amount to be given
in damages.
The Jury found for the plaintiff—Damages, 20/.

EXCHEQUER COURT.-(THIS DAY.

HALIFAX V. CHAMBERS AND ANOTHER.

This was an action in case, which was tried before Mr. Jus-
tice Williams at the late assizns held at Carlisle, when a ver-
dict was found for the plaintiff.

Mr. WATSON, by leave from the Learned Judge, moved for
a Rule Nisi to set aside that verdict, and to enter a nonsuit.
The defendants were, as, executors, tenants to the plaintiff,
and it was their duty to cultivate the land accord-
ing to the custom of that part of the country. The
breaches assigned were for ovcrcropping, not manuring, &c.,
from March, 1835, down to Candlemas, 1837, being a period
of two years. At the trial, the attorney for the plaintiff in his
cross-examination, proved that the land was held under a writ.
ten lease; which expired in 1836, and that the defendants hold
in 1837, under its provisions without renewal. He (Mr. W.)
called for the production of the lease, and upon its being re-
fused, he contended that without that lease being put in evi-
dence, the plaintiff had made out no case, as it would show the
manner in which the land was to be cultivated, and no custom
of the county could put it out of the case.
Mr. Baron ALDaKSON—What answer was made to your ob-
jection?

Mr. WATSON—None, my Lord. The Counsel for the plain-
tiff offered to put it in, if the Learned Judge would call for it.
His Lordship, however, did not think it his duty to advise in
what manner the cause should be conducted, and the case
went to the jury.
Mr. Baron PARKE—TAe a rule.
%ELTON V. MONS.
This was an action for trespass, which was tried before Lord
Denman at the late Sussex Assizes, when a verdict was found
for the plaintiff, with nominal damages, the action being
brought to try a right.
Mr, TuEs,toEtt How moved for a Rule .Nisi for a new trial,
90 the ground of misdirt-ction, and also on the ground that
the verdict was opposed to all the evidence in the came.
It appeared that the Rev. Mr. Billingsley was lord of the
manor of two fields called Poi a ld and Gillington-field ; that
the right of sole pa•turage over the two fields had been de.
mised to the defendants by lease for 14 years in 1803, and had
been continued to them from year to year up to the present
time. He (Mr. Thessiger) also proved that they had exer-
cised their right down to the present time ; that hive,.
riattly %%ben they found cattle on either of the adds
they seized them, and had them conveyed to the pound.
His Learned Friend, Mr. Platt, called no witnesses; but
having, in the cross-examination of one of the defendant's wit,
nesses, elicited that there had been some buildings erected on
the fields, or encroachments, as ho called them; and from
thence he contended that the defendants had no exclusive
right to the pasturage, which point was also taken up tv
the Learned Lord in his charge to the Jury, anti they;',
to the surprise of all, found for the plaintiff,
seemed not very well to tin4ergt§iicl what
the were
about, because, on it 4 Toqu ;
qting the Learnedy .scdee
to 44 90 itleit fronded their vpiict they .cadge
salt/

they found for the I,laintiff, because the defendants been
not exercised their riglit within 20 years, it having
proved over and over again that they had constantly exec
cisedlit, and even down ti the present time.
Mr. Baron GURNEY —lt was a commoa jury 1 suppose.
Mr. THSssIGER—It w a my Lord.
Mr. Baron ALDERSON— A Fro,t uncommon jury I think!
Mr. Baron GURND Y—lf r
pers.ots will try questions of igion:
with County Common Juries, they must put up with the
convenience. n
Mr. THESSIGER—The quesoit here was so an
the right so clear, that we thought there was no danger.
The COURT—Take a Rule.
Having gone through the Bar, the Court called the .p2r;
pa re
ofd tthoo g
causeso o n and
out o
emptory paper, but unfortunately none of the CounsAt.
Wei,e
pr
theftheCr
Court
rule
Counsel pleaded hard for lenity, on the ground of the
ego
for going into the peremptory paper on the second day 0'
trike
paper. were about to s
wholee
not being well known, and that so soon after the long vacatie
gentlemen had not ,yet got into their regular babas'''.
(Laughter.)
Under all the circumstances the COURT would relax the
,
e
rule till Monday, but the profession must understand that te
meaning of the word peremptory t‘ould, in future, be pd,
remptory.—( A laugh.) If Gentlemen were not Prelim*" be
in future, when the cases were called upon, they "111"
struck out, and not. be allowed to be brought on again, ery
peremptory paper, if strictly adhered to would prove
beneficial, but if not/there could be no greater nuisance' •