his own twenty-four years before action brought, B. had stopped up this way, and made a new way, which had been used ever since, but latterly B. stopped up the new way; in an action brought by B. against A. for going over the new way, it was holden, that A. could not justify using this way as a way of necessity, but that he should either have gone the old way, and thrown down the inclosures, or brought an action against B. for stopping up the old way. The new way was only a way by sufferance during the pleasure of both parties, and A., by stopping it up, determined his pleasure.

A way of necessity exists after unity of possession of the close to which, and the close over which, and after a subsequent severance.

If a person purchases close A., with a way of necessity thereto over close B., a stranger's land, and afterwards purchases close B., and then purchases close C., adjoining to close A., and through which he may enter close A., and then sells close B., without reservation of any way, and then sells closes A. and C., the purchaser of close A. shall nevertheless have the ancient way of necessity to close A. over close B.b

Having detailed the several methods by which a party may entitle himself to a way over the land of another, it may not be improper to subjoin a few remarks relative to the form of pleading a right of way, and of replying thereto.

Pleading Right of Way.-In pleading a right of way, the defendant ought to shew the nature of the way, i. e. whether it be a footway, horseway, or carriageway; otherwise the plea will be bad, on demurrer, for uncertainty this rule applies both to public and private ways; but in other respects, the form of pleading a public highway is more general than that of pleading a private way. Hence, it has been holden, that in a plea of public highway, it is not necessary to state either the places from which and to which it leads, or that such way has existed from time immemorial'. It is sufficient to state compendiously, that it is a public highway; but in pleading a private way, the terminus a quo, and terminus ad quem, ought to be set forth".

In replying to a plea of right of way, the plaintiff either admits the right, and new assigns, e. g. extra viam, or that the plaintiff has used the way in a different manner than that

h Buckby v. Coles, 5 Taunt. 311. i Alban v. Brounsall, Yelv. 163. k Rouse v. Bardin, 1 H. Bl. 351.

1 Aspindall v. Brown, 3 T. R. 265. m 2 Leon. 10.

to which he was entitled; or he denies the right; and here it is to be observed, that in denying the right the plaintiff ought to deny or traverse it specially, in conformity to the rules of pleading, which do not allow the general traverse de injuriá suá propriá absque tali causá to be pleaded in cases where the defendant insists on a right"; and which rule holds as well where the defendant justifies by command of another claiming the right, as where he insists on the right in himself.

To a plea claiming a right of way, the plaintiff may traverse the right, and give in evidence that the way had been stopped up by order of two J. P. under the stat. 13 G. 3. c. 78. s. 19. and 55 G. 3. c. 68. (22) and that defendant committed the trespass complained of after the way was so stopped up.

But a plaintiff could not have availed himself of such an order, under the 13 Geo. 3. c. 78. unless it had appeared that the order had pursued the form prescribed in the schedule to which the enacting part of the 19th section referred, e. g. the length and breadth of the new road must have been set out in the order: otherwise the order would have been bad, and advantage might have been taken of the defect in a col

n Ruishbrooke v. Pusanie, 4 Leon. 16. o Cockerill v. Armstrong, Willes, 99. Crogate's case, 8 Rep. 66. b. Cooper p Davison v. Gill, 1 East, 64. v. Monke, Willes, 54.

(22) By stat. 55 Geo. 3. c. 68. after reciting sec. 19. of 13 Geo. 3. c. 78. and that it is expedient that more public notice should be given of orders for diverting and stopping up highways, and also that a greater facility of appeal should be given against such orders, and that J. P. should have power to stop up unnecessary highways, it is enacted, that so much of the act of the 13th of the King as is therein before recited shall be repealed, and by s. 2. it is enacted, that "when it shall appear upon the view of two or more J. P. that any public highway, bridleway, or footway, &c. may be diverted, so as to make the same nearer or more commodious to the public, and the owners of the lands through which such new highway, &c. is proposed to be made, shall consent thereto, by writing under their hands and seals, it shall be lawful, by order of such J. P. at special sessions, to divert and turn, and stop up such footway, and to divert, stop up, and sell such old highway, or bridleway, and to purchase the ground for such new highway, &c. in the manner, and subject to the exceptions and conditions prescribed in the statute 13 Geo. 3. c. 78. with regard to highways to be widened and diverted; and also when it shall appear upon the view of two J. P. that any public

lateral proceeding. And further, as by the same section of that statute the J. P. had only jurisdiction conferred on them

highway, &c. is unnecessary, they may by order, stop up and sell the same, subject to the conditions mentioned in the 13 Geo. 3. c. 78. in regard to highways, to be widened and diverted; except that the money arising from such sale shall be paid to the surveyors towards the repairs of the highways of the parish;-provided that in the several cases before mentioned, a notice in the form given in a schedule to this act, shall be affixed by the side of the highway, &c. and inserted in one or more newspapers of the county, for three successive weeks after the making of such order, and a like notice shall be affixed to the door of the parish church on three successive Sundays subsequent to the order, and the notices having been so published, the order shall at the quarter sessions next after the expiration of four weeks from the first day on which such notices shall have been published, be returned to the clerk of the peace in open court, and lodged with him, and the said order shall at such quarter sessions be confirmed and enrolled. The notice cannot be considered as given until it has been published once in each of the three modes required by the act; the computation must therefore be made from the first day on which that description of notice shall be given, which is last published. R. v. Justices of Kent, 1 B. & C. 622. Sect. 3. gives a power of appealing to persons aggrieved by such order, or by the inclosure of any road or highway, by virtue of any writ ad quod damnum,† to the said quarter sessions, (that is, the quarter sessions next after the expiration of four weeks from the first day on which the notices shall have been published,) upon giving ten days' notice in writing to the surveyor and also affixing such notice to the door of the parish church. And by s. 4. if no appeal be made, or being made, such orders shall be confirmed, the ways may be stopped and the proceedings shall be conclusive to all persons, and the new highway, &c. shall be and continue a public highway, &c. but the old highway, &c. shall not be inclosed until the new highway, &c. shall be completed and put into good condition, and so certified by two J. P. upon view. This certificate is to be returned to the clerk of the peace, and by him enrolled amongst the records of the quarter ses. sions next after such order shall have been confirmed and enrolled.

* This must be done at a special sessions, as well as the order for diverting a highway. R. v. Sheppard, B. R. Hil. 60 Geo. 3. & 1 Geo. 4. 3 B. & A. 414. And it is necessary to give reasonable notice of the special sessions at which the order is to be made to the several justices acting and residing within the division, and unless such notice be given the sessions ought not to confirm and enrol such or der, even although there be not any appeal against it. R. v. Justices of Worcestershire, 2 B. & A. 229. The notice must be served by the high constable of the hundred. Service by the magistrate's clerk is not sufficient. R. v. Js. of Surrey, 5 B. & C. 241. The notice must state that party is aggrieved. R. v. Justices of Essex, 5 B. & C. 431. It must appear on the face of the order that the consent of the person who is the owner of the estate at the time when the order for turning the road through his land is made, has been obtained. R. v. Kirk, 1 Barnewall and Creswell, 21. The assent of agent is not sufficient. 1 B. & C. 622. ↑ See Rex v. Justices of Bucks, 2 Maule and Selwyn, 280.

in a given case, viz. to divert an old road, so as to make it nearer or more commodious to the public, that is, by making a new road (23); it was necessary that it should appear, that a new highway had been made in lieu of the old highway; merely widening an old highway, by the addition of detached pieces of land adjoining to one side of it (the termini a quo and ad quem, and the direction of it, remaining the same as before,) was not considered as diverting an old highway, or making a new highway within the meaning of that statute, and in such case, although the order of the J. P. was regular on the face of it, stating, that a new highway had been made in lieu of the old one, and although such order had been confirmed on appeal by the quarter sessions, yet it was competent to the defendant to prove that a new highway was not in fact made; for the J. P. cannot give to themselves a jurisdiction in a particular case, by finding that as a fact which is not really the fact.

8. Tender of Amends.

At the common law', if a person brought an action of trespass for taking away his beasts, or other goods, tender of sufficient amends before action brought was not a bar; because the party making the tender was not the owner of the goods, as in the case of a distress (24), but a trespasser to whom the law did not shew any favour. But now, by stat. 21 Jac. 1. c. 16. s. 5. "In all actions of trespass quare clausum fregit, wherein the defendant shall disclaim in his plea,

q Welch v. Nash, 8 East, 394. See also De Ponthieu v. Pennyfeather, 5 Taunt. 634.

r 2 Inst. 107.

(23) The power to shut up roads is given only where there is a new road to be set out. Page v. Howard, M. 23 G. 3. B. R. Cald. 223.

(24) With respect to distresses, either for rent arrear or damage feasant, the law is, that if a tender is made before the taking the distress, the taking is wrongful; if after the taking, and before impounding, the detainer is wrongful. But a tender, after impounding, comes too late. Hence, in pleading a tender of amends to an avowry for damage feasant, it ought to appear on the face of the plea, that the tender was before impounding. The clause in stat. 21 Jac. 1. c. 16. s. 5. hath not made any alteration in this respect, for that clause is confined to actions of trespass t.

2 Inst. 107.

† Allen v. Bayley, Lutw. 1596.

to make any title or claim to the land, and the trespass be by negligence or involuntary, defendant may plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender of sufficient amends before action brought.' this plea the plaintiff may reply a latitat sued out, with an intention to declare in trespass before the tender.

To

V. Costs.

THE statute of Gloucester having given costs in all cases where damages were recoverable, it followed as a necessary consequence, that wherever the smallest damages were recovered, the plaintiff obtained his full costs. This was productive of so much inconvenience, by encouraging vexatious suits, that the interposition of the legislature was deemed necessary, in order to confine the operation of the statute of Gloucester. For this purpose it was enacted by stat. 22 & 23 Car. 2. c. 9., that "in all actions of trespass, assault and battery (25), and other personal actions, wherein the judge, at the trial of the cause, shall not find and certify under his hand, upon the back of the record, that an assault and battery was proved, or that the freehold or title of the land mentioned in the plaintiff's declaration, was chiefly in question; the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover more costs of suit than the damages so found shall amount unto."

Notwithstanding the general words "other personal actions," this statute has been uniformly construed to be confined to the two species of actions therein specially named, viz. trespass, and assault and battery; and that the action of trespass is confined to trespass quare clausum fregit, wherein the freehold or title to the land may come in question. It may be laid down as a general rule, that all actions quare clausum fregit, wherein the plaintiff merely declares for an injury to the freehold, or to something growing upon", or af

s Watts v. Baker, Cro. Car. 264.

t Salk. 208. Milburne v. Reade, 3 Wils. 323. per Willes, C. J.

u Hill v. Reeves, Bull. N. P. 329.

(25) For the cases on this statute relating to assault and battery see ante, p. 40.