171 E.R. 70

70 PICKERING V. RUDD 4 CAM*. 218.
on the within security for any longer period. And I do hereby desire t h a t my
execu-[218]-tors or administrators, in case of my decease, do permit and suffer the
same sum to remain on the within security, so long as it may be convenient to the
said Charles Metcalfe, without suit at law or in equity against the said Charles
Metcalfe, until three years after my death, provided he continues to pay the interest
thereof regularly as the same becomes due. Witness my hand this 17th day of July,
1811. E D W A R D STONE.
" Witness, William Redin."
It was contended on the authority of Leeds v. Lancashire, 2 Campb. 205, and
Hartley v. Wilkinson, 4 Campb. 127, t h a t this indorsement was to be incorporated
with the note, and made the whole instrument a special agreement, which ought
to have been stamped and declared upon as such.
But the indorsement was not distinctly proved to have been written before the
note was signed.
Lord Ellenborough said, t h a t if it was subsequently written when the note had
been perfected and delivered in its absolute state, it could not be considered as a part
of that instrument, although it chanced to be inscribed upon the same piece of paper.
In that case, it was an agreement by way of defeasance, and it lay upon the defendant
to produce it with a proper stamp. But even if the indorsement had been con-
temporaneous with the body of the note, his Lordship said he should have thought
it the expression of [219] an intended courtesy to the defendant, and not a quali-
fication of the contract between the parties.
The plaintiff had a verdict.
Garrow, A. G., and Holroyd for the plaintiff.
Topping and Tindal for the defendant.
[Attornies, Wortham and Baxters.]
Tuesday, J u n e 20, 1815.

P I C K E R I N G V. R U D D .
(Where the defendant nails to his own wall a board which overhangs the
plaintiff's close, the remedy seems to be case and not trespass.)
[S. C. 1 Stark. 56. Considered and applied, Lemmon v. Webb, [1894] 3 Ch. 1. Referred
to, Harvey v. Walters, 1873, L. R. 8 C. P . 162 ; Mayor, dc. of Tunbridge Wells v.
Baird, [1894] A. C. 434.]
Trespass for breaking and entering the plaintiff's close, and placing a board over
it, and cutting a tree, &c.
Plea, not guilty as to the clausum fregit; and as to cutting the tree, a justifica-
tion that it was wrongfully growing against the wall of the defendant, and t h a t he
therefore removed it, as he lawfully might. New assignment of excess, and issue
thereupon.
The defendant's house adjoins to the plaintiff's garden, the locus in quo ; and to
prove the breaking and entering of this, the evidence was, t h a t the defendant had
nailed upon his house a board, which projected several inches from the wall, and so
far overhung the garden.
[220] Garrow, A. G., and Richardson for the plaintiff contended, t h a t this was a
trespass for which he had a right to maintain the present action. Cujus est solum,
ejus est usque ad coelum. The space over the soil of the garden is the plaintiff's, like
the minerals below, and an invasion of either is, in contemplation of law, a breaking
of his close. A mere temporary projection of a body through the air across the
garden may not be actionable ; but where a board is caused permanently to overhang
the garden, this is a clear invasion of the plaintiff's possession. If this be not a
trespass, it is easy to conceive t h a t the whole garden may be overshadowed and
excluded from the sun and air without a trespass being committed.
Lord Ellenborough—I do not think it is a trespass to interfere with the column of
air superincumbent on the close. I once had occasion to rule upon the circuit, t h a t
a man who, from the outside of a field, discharged a gun into it, so as t h a t the shot
must have struck the soil, was guilty of breaking and entering it. A very learned
Judge, who went the circuit with me, at first doubted the decision, but I believe he
afterwards approved of it, and t h a t it met with the general concurrence of those to
whom it was mentioned. B u t I am by no means prepared to say, t h a t firing across a
HeinOnline -- 171 Eng. Rep. 70 1688-1867

4 CAMP. 221. SAMPSON V. CHAMBERS 71
field in vacuo, no part of the contents touching it, amounts to a clausumfregit. Nay,
if this board overhanging the plaintiff's garden be a trespass, it would follow that an
aeronaut is liable to an action of tres-[221]-pass quare clausum fregit, at the suit of
the occupier of every field over which his balloon passes in the course of his voyage.
Whether the action may be maintained cannot depend upon the length of time for
which the superincumbent air is invaded. If any damage arises from the object
which overhangs the close, the remedy is by an action on the case.—Here the verdict
depends upon the new assignment of excess in cutting down the tree.
The jury found for the defendant.
Garrow, A. G., and Richardson for the plaintiff.
Jervis and Abbott for the defendant.
[Attornies, Caley and Presland.]
Wednesday, J u n e 21, 1815.

SAMPSON V. CHAMBERS AND ANOTHER.
(In an action against the hundred on the Riot Act, for damage done to a house; the
breaking of inside window shutters, a window sill, and the wood of the fanlight, is
sufficient evidence of a beginning to pull down, if the mob are interrupted and
dispersed while committing these acts of violence, by an alarm of the approach
of the military.)
This was an action on 1 Geo. I. s. 2, c. 5, against two of the inhabitants of the
hundred of Ossulston, for the damage done by a mob in feloniously beginning to
demolish, and in part demolishing, the plaintiffs house in Harley Street.
It appeared t h a t during the riots respecting the corn bill, a [222] mob assembled
round the plaintiff's house (mistakenly supposing t h a t it belonged to a person who
had supported t h a t measure), and threw stones and brickbats against it for a con-
siderable time. In this manner several of the inside window shutters, a window sill,
and part of the wood of the fanlight over the door were broken, but none of the
window frames. The mob in the meantime hollowed out, " No corn bill! " While
they were proceeding in this manner, a cry was raised t h a t " the Piccadilly butchers
were coming." The lifeguards immediately rode up, and the mob dispersed.
Lord Ellenborough held, t h a t there was here a sufficient beginning to demolish,
within the meaning of the statute, and the plaintiff had a verdict.*
Garrow, A. G., Gaselee, and Peake for the plaintiff.
Park for the defendant.
[223] Adjourned Sittings at Guildhall.

Monday, June 26, 1815.
WALTON V. HASTINGS.
(If after a bill of exchange is delivered by the drawer to the payee, its date is altered
by an agreement between the payee and the drawee before acceptance, it is
void as against all the parties.)
This was an action by the payee against the acceptor of a bill of exchange dated
10th July 1815, drawn by E. Brooks, payable three months after date.
The plaintiff sold goods to Brooks, which it was agreed should be paid for by a bill
of exchange to be drawn by Brooks upon the defendant in favour of the plaintiff.
Brooks accordingly on the 5th July drew the bill in question, which bore date on that
day, and delivered it to the plaintiff. On the 10th of July this bill was carried by an
agent of the plaintiff to the defendant for acceptance. The defendant said, " As the
bill is now dated, I shall be from London when it becomes due, but if you will alter it
to the 10th I will accept it." The plaintiff's agent altered it accordingly, and after it
was so altered, the defendant accepted it. No communication upon the subject was
made to Brooks, who in the meantime had left London.
Jervis for the plaintiff contended, t h a t the alteration being [224] made before
acceptance, the defendant was liable upon it as acceptor, although the drawer might;
be discharged. He relied upon Paton v. Winter, 1 Taunt. 420,
Lord Ellenborough.—Upon the stamp laws I think the bill is void. It was an
existing valid instrument before the alteration. I t was negotiated when delivered
by Brooks to the plaintiff. The plaintiff as payee had acquired an absolute interest
* See the cases collected, Wms. Saund. 377, b. (12).
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70 PICKERING V. RUDD 4 CAM*. 218.

Tuesday, J u n e 20, 1815.

HeinOnline -- 171 Eng. Rep. 70 1688-1867

Wednesday, J u n e 21, 1815.

[223] Adjourned Sittings at Guildhall.

* See the cases collected, Wms. Saund. 377, b. (12).

HeinOnline -- 171 Eng. Rep. 71 1688-1867

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