The Sun.
London, England, 1847-05-24 00:00:00

COURT OF COMMON PLEAS, May N.

(Sittings in banco, before the LORD CHIEF JUlil ICE
This being the first day of term, motions were taken,
lie first of which was

ILAINES V. WARD.

Mr. Sergeant BILES moved for a new trial, on an arrest
of judgment in this case, on the ground of misdirection
of the Judge at the trial. It appeared that an action
had been brought upon a eae'of injury, where damages
had been given for a default in nut properly fencing an
area close by a public footway. The circumstances
were these :—A :tidy, the mother of three children,
went to see her friend off by the Great Western Rail-
way, and while waiting for the train they both went to
a house in the neighbourhood, for refreshment, and on
their way back to the station her companion dropped
her muff ; she turned to pick it up, and in doing so fell
down a number of steps which led to the basement of a
house. and fractured her skull She died in consequence,
and as actionfor damages had been brought, on which the
jury gave a verdict for the plaintiff. Mr. Sergeant 13!.1es
moved for a new trial on the ground that the declaration
was not in compliance with the terms of the Act, which
required that all the parties interested, up to the grand-
father and grandmother, ought to be stated. In the
next place, there had been no evidence to show that
there had been any grant of a public right to pass by
this footway, and if there were not, no action could
possibly lie.
Mr. Justice MAUL' suggested the case of "Walker
v. Bright."
Mr. Sergeant BYLES said that that was an action
brought in a case where the casement or footway was
made over an area, and not by it, which materially al-
tered the circumstances. Neither could there be any
claim on the ground of this being an ancient footway,
for the accident occurred is an open place in front of a
house in Victoria-terrace, situate in a pathway leading
from the Edgeware-road to the Harrow-road, which was
solely used in consequence of the permission of the
tenantry. Now, although there was a local Act
imposing a penalty upon parties not fencing any
vault, or open space, yet that did not give
a sufficient ground of action, for the penalty, which is a
fine of five pounds, would give the remedy ; and, he
contended, that if this way were allowed by the tenantry,
the abuse of it, or misfortune arising from the use of it,
imposed no responsibility on the tenant in fee of the es-
tate ; for it was an acknowledged principle, that a rector
or vicar even, each of whom was at least a tenant for
life, bad no right to yield a right of way over a church-
yard without the consent of the patron and the bishop ;
so that there was clearly no liability. There was then
a deficiency in the Act, which stated that the damages
were to be divided among the several persons who might
be entitled to them ; and there had been a special recom-
mendation by the jury that the learned judge should
take care that the money was properly divided among
the recipients who were infants. There was, therefore,
plainly a defect in the judgment, which entitled the de-
fendant to a new adjudication.
The CHIEF JUSTICE said, that it was the opinion of
the Bench that sufficient evidence had not been sub-
mitted to the jury to justify the verdict, and the rule
must accordingly be allowed. With respect to the
money the Court had no jurisdiction. but in the event of
its being ultimately paid, the plaintiff in the action was
the party entitled to receive it,.and if any injury ensued
the remedy would be by an application to a Court of
Equity.