say, that upon payment of 4447. to the defendant in error, who was originally liable to the whole 2,500l. he shall be satisfied, and the parties shall execute general releases. This adjusts all the matters in dispute. It was argued in the Court below, that the arbitrators could not award upon costs in this manner by proportions; but the Court were of opinion, that as an arbitrator might say, A., B., and C, shall pay a sum, to be hereafter ascertained, in certain proportions, that part of the award was good. That objection has not been raised this day. But it is pressed, that the arbitrators have done wrong in directing a mode of payment of the costs, viz. by allowing the sums already expended on account of the suits, or connected with them, as part payment of their respective shares. And it appears to me, that that was not within their authority. But it has not been shewn, that an excess of authority in one part of an award, vitiates it in the whole. If arbitrators go on and consider points not included in the submission, their award to that extent is a complete nullity: but the residue is not thereby invalidated. Therefore I am of opinion, that the judgment of the Court of King's Bench was right, and ought to be Affirmed. 1824. AITCHISON V. CARGEY. DENMAN, C. S. had obtained a rule to shew cause why a new trial should not be granted, on two grounds; first, that the verdict was contrary to evidence; and secondly, the misdirection of the learned Judge. The action was brought for the disturbance of a right of common, belonging to the free burgesses of the town of and rail fence containing gaps through which the commoners' cattle wall, with a single doorway, at which they might enter and return. encroachment. One farthing damages will sustain the verdict for the trespass. (a) Ex relatione. June 29th. A. being postion of a lammas field, over which a right of common existed part of sessed of a por the year, took down the cus tomary post might pass, and built a Held, that this was an plaintiff in an action of .1824. KITCHEN v. KNIGHT. Nottingham, and was tried at the late assizes, before Mr. Baron Garrow and a special jury, when a verdict was returned for the plaintiff, with one farthing damages. It appeared that the locus in quo was part of the lammas fields, which were commonable from Lammas to All Saints-day; that formerly it had been inclosed with a post and rail fence, with several gaps, through which cattle might pass; and that they might also put their heads under the rails, and crop the grass growing there; that it had always been used as a wood-yard; that defendant had built a wall in the place of the former fence, leaving only one door-way or passage large enough for cattle to pass in singly, and that they could not go in so conveniently as they were accustomed to do, before the wall was erected. It was admitted that the plaintiff was a householder, paying scot and lot, and entitled to right of common. Clarke, N. G. now shewed cause; he contended, it was evident that there had been an encroachment on the part of the defendant. Before the wall was built the cattle could put their heads through the rails to eat the grass, and the soil also upon which it was built was productive for their use. It was true, that fences were put up in other parts of these lammas fields, but they were prostrated in commonable time. If, however, the defendant's wall were permitted to stand, the whole might be covered with walls, by which the right of the cattle, to range over the whole, would be destroyed. They could so range over the part in question when the wood fence was standing, from the number of gaps that were in it; they could not now; and as the commoners were prevented, according to the averment in the declaration, from enjoying their right of common in the ample manner they had been used and accustomed to do, the plaintiff was clearly and legally entitled to the verdict he had obtained. Denman, C. S. contrà. The defendant being owner of the land, had a right to put up whatever boundary or fence he pleased. It had formerly been a slab or boarded fence. It was objected at the trial, that the enjoyment of the sun and air by the common was obstructed; to which it was answered, that parties have a right to protect their own property and interests, though in so doing they may necessarily affect the rights of others a little. He admitted, that if cattle could have got through the new fence as they did through the fence erected formerly, they would not be trespassers; but on the other hand, it was shown that the place had been enjoyed as a carpenter's yard as long as there was any proof of the enjoyment of a commonable right over it; and therefore the right of the defendant to put up a sufficient defence was as ancient as the plaintiff's right of common; and both rights might still be enjoyed; for there was a door in the wall through which the cattle might pass at the proper season. It might be, that a minute interest had been abridged, because the cattle could not crop the grass under the fence, as it was alleged they had formerly done: and upon this the learned Judge told the jury, that if any right had been abridged, they must find for the plaintiff. Now, he contended, that the abridgment of the right in this instance was too minute for legal cognizance, and its enjoyment incompatible with the exercise of the defendant's right to protect his property by a boundary wall upon the scite of the old fence; and he had not gone beyond it. This point had not been sufficiently put to the jury by the learned Judge; and he maintained, that if it had been urged upon them, as he contended it ought to have been, they would, in all probability, have given the defendant a verdict, as it was clear they had some difficulty in making up their minds upon the question; for they were several hours in deliberation. GRAHAM, B. (a) I can perceive no ground in this case (a) The Chief Baron was engaged in the Exchequer Chamber. 1824. KITCHEN V. KNIGHT. 1824. KITCHEN. v. KNIGHT. to disturb the verdict. It has been pressed in argument that it was not sufficiently put to the jury, that the wall did not extend beyond the line of the old fence. Now that fact appears clearly in all the evidence, without the slightest contradiction; and therefore it was not necessary that the learned Judge should urge it upon them, for they could be under no mistake upon that part of the case. It appeared from the evidence that there were gaps in the fence in former times, through which the cattle could range at their pleasure: now, they certainly could not do so through a brick wall. In addition to this, as the soil upon which the wall was built cannot now produce any grass, which it did produce when the railed fence existed, it is impossible to say that there has not been an abridgment of the right of common. GARROW, B. concurred. HULLOCK, B. If this verdict were to bind the right in question for ever, by fixing it upon the present record, I might wish to give the subject a little more consideration before I delivered my opinion, though I do not apprehend I should arrive at any other conclusion than that the verdict ought to stand: but the defendant may try the question again, by conducting himself as he has done before, without our granting a new trial in the present instance. As to the argument founded upon the minuteness of the infringement of the common right, the case of Pindar v. Wadsworth, 2 East, 154, is sufficiently in point, where it was held that a farthing damages will sustain an action of this sort. Rule discharged. SAVILE V. JACKSON. DEMURRER to a plea of damages assessed in a former action to a declaration in scire facias, on a judgment obtained in an action on a bond, dated the 17th of June, 1820, conditioned in the sum of 4,000l. for the replacing on or before the 1st day of January, then next ensuing, of 8751. Bank stock; and the payment of all dividends, bonuses, and profits, which might have accrued in the mean time. 1824. July 3d. A. advances to stock, for which bond condition B. 8751. Bank B. executes a ed for the replacing the stock on a day payment to A. certain, and the of all dividends, bonuses, and profits, which would have same in the mean time. B. makes default. judgment with damages as A. recovers sessed upon Held, that the plea of judg both breaches. ment recovered ther dividends, dict, whatever Jeremy, in support of the demurrer.-In the declaration arisen from on the bond two breaches were assigned; first, that the old stock had not been replaced; and secondly, that the defendant had not paid the dividends, &c. which might have arisen upon the stock up to that time. The jury in assessing the damages under the 8th and 9th Will. 3, had computed the amount of the stock, and of the dividends, &c., and returned their verdict for the whole sum; viz. is a good bar 21781. 15s. The plaintiff recovered judgment in Hilary that A. is not to a sci. fa.; and term, 1822; but did not obtain satisfaction on the judg- entitled to furment till more than a year after. The declaration in scire &c. after verfacias states the amount of the judgment recovered; and then goes on to aver that further dividends would have accrued to the plaintiff, if the stock had been replaced at the time the judgment was so recovered; and the question is, whether the plaintiff is entitled to recover the amount of these subsequent dividends and profits. The defendant by his plea, has said the plaintiff ought not, in law, to have or maintain his aforesaid action thereof against him, because he says the damages assessed were 21781. 15s. &c.; and that afterwards the said planitiff recovered the same with costs, &c. amounting in the whole to 22021. 8s. 6d. in an action of debt, &c. and that the said plaintiff being delay there may be in his suing out execution. |