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Aylesbury, coram Martin, B. and a Special Jury.


T Spring Atsixei.

HIS was an indictment preferred and found at the last That the public

Quarter Sessions for this county, and moved by certiorari emuTed"o the into the Court of Queen's Bench, charging the defendants, use of ev"7

^ '*> ° 'portion of an

in eleven different counts, with obstructing the highway in ordinary high

WAV lvinff be

the parishes of Denham, Iver, Chalfont St. Peter's, Bea- tween'the consfield, Wycombe and Chepping Wycombe, by erecting .^"c"" f"^*" telegraph posts thereon, "to the great damage and com- teroflaw;

6' r ' &_ b though what is

mon nuisance of all the Queen's subjects." a permanent

The defendants pleaded not guilty. placed on the

From the opening statement of the counsel for the pro- highway, ren

r e r dering the way

secution, and the evidence given in support of it, it ap- lesscommo

. dious than be

peared that the company, as then constituted, had no par- fore, and so liamentary powers authorizing them to erect their posts on p"^""^^. the public highway, and that a bill conferring such powers sance, is a

r question of

fact for the

(a) Reported by A. K. Stephenson, Esq.


Photographs allowed to be used on the trial of an indictment for an obstruction to a highway, to show the nature of the locus in quo.

1862. Reqina


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on them was at that time under the consideration of Parliament.

Particulars specifying the numbers and positions of the posts in each parish, alleged on the part of the prosecution to be obstructions to the highway, had been furnished to the defendants before trial. The prosecution, in support of the indictment, called several workmen who had been employed to erect the posts, who described the method of erection, and a surveyor, whose evidence was to the effect that a great number of the posts mentioned in the particulars were erected on the artificially-formed footpath by the side of the metalled road, and that in one instance at least a post had been erected upon the metalled road itself. Photographic views of all the posts complained of were produced by both sides, and referred to by the Court and jury, in explanation of the evidence on the examination and cross-examination of the witnesses for the prosecution.

On the morning of the second day of the trial, the surveyor who had given evidence on the previous day was recalled, and asked by the counsel for the prosecution, whether he had, since giving his evidence on the previous day, made an examination of the ground in which some particular post was placed, and whether from such examination he could state whether or not that post had been placed in a footpath artificially formed. The question was objected to by the counsel for the defendants; whereupon

Mabtin, B., said that, having considered the subject, he had prepared a written statement of what he believed to be the law as applicable to the question, and that if his view were correct the circumstance of a post having been placed on the artificially-formed footpath, or on the waste land beside the metalled road, was immaterial, so long as it was placed within the fences inclosing the highway. He, the learned Judge, was prepared to state how he should direct the jury. His Lordship then read the following:—

1. In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences 1862.

on each side, the right of passage or way, prima facie, and Tt^"^"^ unless there be evidence to the contrary, extends to the v.

whole space between the fences, and the public are entitled Kinqdom

to the use of the entire of it as the highway, and are not electbic


confined to the parts which may be metalled or kept in Company . , , ... „ (limited).

repair for the more convenient use of carriages or foot


2. That a permanent obstruction erected on a highway, and placed there without lawful authority, which renders the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law; and that if the jury believed the defendants placed, for the purpose of profit to themselves, posts with the object and intention of keeping them permanently there, in order to make a telegraphic communication between distant places, and did permanently keep them there, and the posts were of such size and dimensions and solidity as to obstruct and prevent the passage of carriages and horses or foot passengers upon parts of the highway where they stood, the jury ought to find the defendants guilty on this indictment; and that the circumstances that the.posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or that the jury might think that sufficient space for the public traffic remained, are immaterial circumstances as regards the legal right, and do not affect the right of the Crown to the verdict.

(yMalley then stated that he should wish to consult with his clients as to the course to be pursued.

The counsel and solicitors for the defendants then left the Court, and on their return,

O'Malley said that, such being his Lordship's view of the law, if the jury were to be so directed and the question so left to them, it would be useless for the defendants to




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hope for a verdict on this indictment; that he should therefore abstain from calling the evidence with which he was prepared, and which would in many respects completely contradict that already given by the prosecution, and that he should move the Court of Queen's Bench on his Lordship's ruling, which, according to decided cases, he believed to be erroneous.

His LoRDsniP then briefly summed up the evidence given by the prosecution, and directed the jury in accordance with the view he had already expressed.

The jury at once returned a verdict for the
Crown (a).

Mills, Q. C, and Metcalfe for the Crown.

O'Malley, Q.C., D. D. Keane, Joseph Chitty (of the Chancery Bar, specially retained), L. Brown and Stephenson for the company.

(a) In T. T. O'Mallet/ moved in Q. I?., but took nothing; the Court upholding the ruling of the learned Baron; see R. v. Train, ante, p. 22, the same principle upheld: and although it was there left to the jury, whether the obstruction amounted to a nuisance where it was, it was taken as matter of law, that, if an obstruction, it

would be a nuisance, although enough of the road remained for the ordinary use of it. And here the learned Baron was ready to leave to the jury the question as to the obstruction, on which, however, O'Mtilley, as the verdict must have been against him, did not care to have it, and preferred going on the point of law.



Liverpool, coram Mellor, J.


COX And Others v. THE LONDON AND NORTHWESTERN RAILWAY. Liverpool fY* Spring Assizes.

J_ HIS was an action brought to recover the sum of in an action 55/. 4*. 9d. for damage alleged to have been occasioned to for'injury*TM*" fifteen casks of olive oil, the plaintiffs' property, in con- "'ed b'"them" sequence of the negligent carriage of the same by the ,0 have arisen

, T> „ «n x » from defects in

defendants, from Beal s Wharf, London, to Liverpool. was

left to the jury

Mellish, Q.C., and Charles Russell for the plaintiffs. whether it

arose from

Overend, Q,C, and Aspinall, Q.C., for the defendants. such defects,

and whether,

The plaintiffs are brokers at Liverpool, and it appeared even if it did,

r i.e. tne defendants

that on the 13th of September, 1861, they instructed their knew or ought London agents, Messrs. Thomas and Rough, to purchase (hereof, and for them fifteen casks of olive oil. That firm accordingly, !'.ad afed neB"

0 ■" hgentlv in

on the 14th of September, purchased the desired number, sending them viz. fifteen casks " K.K. olive oil ex Imperial a Palermo," from the importers, Messrs. Schuncks and Souchay. The oil was at the time of the sale in the cellar store at Beal's Wharf, and had been lying there since August, 1860. On the sale being effected, Messrs. Millar and Formoy, coopers, were employed to examine the casks, with a view to seeing whether they were in a fit state to be forwarded, and if not, for the purpose of doing what was needful to them. Those gentlemen accordingly examined the casks, and one of their firm (as also their working cooper) reported that although the casks were old casks, they were sound, and were fit for the journey as they stood, without any more re-coopering. It was proved that the casks had

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