atkins case January ex part Vennor and other guardian of John Vennor of  Wellsborne in the county of Warwick gentleman on the behalf of he as a minor  under the age of year a application to the court to set aside a writ of ad  quod damnum on a suggestion of surprise upon the inhabitant of the neighbour  village when the inquisition be take thereon and for want of a new road be set  out in lieu of the road take away by the person who sue out the writ in his  own ground Lord Hardwicke on all the circumstance of this case of opinion  there be no surprise nor necessary the new road shall be set out by the person  who sue out the writ in his own soil a writ of ad quod damnum late issue  direct to the sheriff of Warwickshire command he by the oath of honest and  lawful man of the county to inquire whether it will be to the king prejudice  or of any other if he shall grant to George Lucy esquire a licence that he may  enclose a certain cartroad or cartway in the parish of Charlcot in the say  county lead from thence to the town of Stratford upon Avon through several  close and enclose ground in the writ mention which road be to contain yard of  land in length and nine yard in breadth as the same have for many year last  pass be use and enjoy to hold the same so enclose to the say Mr Lucy and his  heir for ever go that instead of the say way he make another road or cartway  in his own soil as convenient for pass through the same and the petition  further set forth that Mr Lucy have obtain the say writ cause a jury to meet  at his house in Charlcot of the that of October be three day before the  quartersession hold for the county of Warwick without any notice give for that  purpose at which time and place a inquisition be take before the undersheriff  in and by which the juror therein name say it will not be to the prejudice of  the king or of any other if he shall grant to Mr Lucy a licence to enclose the  road or way in the writ mention to hold it so enclose to he and his heir for  ever so that instead of the say road he do in his own soil set out one other  cartroad as convenient for passenger through the same as in and by the writ be  mention and direct and it be represent by the petition that the cartroad so  intend to be enclose be a large spacious and open road great use by coach  wagon c pass between Stratford and Warwick and that the road intend to be make  use of instead thereof be not yard round about but be a very hilly and uneven  road and no material near thereto for the repair the same and the petitioner  further set forth that a very trifle part of the road so intend to be use be  in the soil of Mr Lucy though the writ require a new road to be set out  altogether in the soil of Mr Lucy but on the contrary thereof near three part  out of four of the same go through Mr Vennors ground and shall Mr Lucy obtain  a licence for the enclosure it will lessen Mr Vennors estate near pound a year  as the stopping up so great a road will be the mean of drive the whole country  through Mr Vennors estate atkins the petition further set forth that they have  no knowledge of the writ be sue out till the day before the same be execute  when Mr Vennor by accident hear that a jury be to meet at Mr Lucy house on the  that of October about change the road on which day Mr Vennor attend in his  ground from ten in the forenoon till after one expect the jury will have come  to have view the same in that time but after wait to no purpose he go to Mr  Lucy house who tell he the jury have view the road but give he no opportunity  of speak to the jury the petition further set forth that after be inform such  writ be execute and that the inquisition take thereon be in favour of Mr Lucy  the petitioner give notice they shall appeal against the same at the next  quartersession which be hold at Warwick on the Tuesday follow and the  petitioner do after the writ be execute apply to the undersheriff for a copy  of the writ and inquisition that they may be certain what road be intend to be  enclose and what be intend to be use instead thereof that they may be able  sufficient to instruct their counsel but he declare he have leave they with Mr  Lucy and your petitioner do then apply to Mr Lucy and his attorney and to the  clerk of the peace for the same but to no purpose but can not procure a copy  until the morning the atkins er p appeal be try and the petition further set  forth that two of the juror who take the inquisition appear at the session and  vote as justice on behalf of Mr Lucy and order the writ and inquisition to be  record for these re son and for as much as Mr Lucy do not set out any new road  or give one yard of land in lieu of the road intend to be take away the  petitioner pray that the Writ and inquisition take thereon may be set aside  and a new writ award and in the mean time all further proceed on the say writ  of ad quod damnum and the inquisition already take may be stay or such other  relief as may seem meet at the same time a petition be present by the  inhabitant of several neighbour town where the road intend to be make be state  the same matter and make the same objection as in Mr Vennors petition and pray  likewise the writ of ad quod damnum may be discharge and which be argue by  counsel and come on to be hear with Mr Vennors petition Mr Wilbraham for the  petitioner the constant form of the writ ad quod damnum be that the person  apply shall carry the new road through his own land to set the writ aside for  Mr Lucy not do what the on a suggestion of surprise in take the inquisition on  I do allow that no notice be absolute require but then atkins throughout the  law in every office of inquisition the king be to be satisfy or subject that  there be no damage to either and that it ought to be do in the open manner  imaginable in the yearbooks Edward it be lie down the inquisition be to be  take in good town open and not privy the same again be hold in Edward the same  rule prevail in the statute of Henry relate to escheator where it be declare  every person be to give evidence open on pain of forty pound in the case of  sir Oliver butler Ventr the writ be execute the day it bear date and at thirty  mile distance from the place here the writ be execute only on the that of  October and the appeal to the quartersession be hear upon the that of the same  October six justice against two be for register the inquisition the statute W  ch give the appeal the quartersession in this case be a appellate jurisdiction  there ought to be a reasonable time allow for person appeal to lie the whole  fact before the court the inquisition be sign on the Friday Mr Lucy steward  keep it till the Wednesday morning till within one hour before the appeal come  on Mr Robinson counsel of the same side the express condition of the writ be  that the person sue out the writ shall lie out the new road at his own expense  but not one syllable of evidence have be give to the jury about it the  petitioner Mr Vennor likewise apply to the undersheriff for a copy of the writ  he answer it be not in his power to give it it be in Mr Lucy hand and the  petitioner can not procure a copy till the Wednesday the very day of the  appeal he cite Mod alias Farresley on the construction of W Mr attorney  general of counsel for Mr Lucy whether the road turn or set out be to the  damage of the country be not the question now the only question be whether the  execution of the writ have be do surreptitious and fraudulent and without the  person who be affect by it atkins have a opportunity of object to any damage  that may ensue to the country and if so whether it ought to be quash the  material point for the consideration of the court be whether there have be any  surprise in this case it be do with notoriety for the petitioner be full  inform of it as to the execution of the inquest of office no precise form of  notice be require either in the church or marketplace but be leave entire to  the discretion of the undersheriff the notice be give on the that of September  to the person who be to attend as the jury the person summon on the jury be  man of fortune and reputation and the great part of they have estate in  Charlcot where Mr Lucy seat be and where the road be turn though the act of  parliament direct the appeal to be at the next quartersession atkins er p yet  if Mr Vennor have desire time the justice will have indulge he by put it off  to another quartersession the hear on the appeal last several hour the  evidence of the new road be half a mile about be lie before the justice the  particular damage to Mr Vennor likewise be insist upon and attempt to be prove  but suppose the justice have do right in confirm the inquisition yet the  petitioner counsel insist that the new road ought to pro through the soil of  the person who sue it out these be word of course in every writ of this kind  and never mean to be strict pursue sir Oliver butler case be a surreptitious  execution of a writ of inquisition as to a market the inquisition there be  execute the day after the writ bear date the only case in equity be mention by  your lordship which be in before Lord king the earl of Salisbury versus archer  there the writ of ad quod damnum issue the that of April the jury come twenty  mile from the place be execute the day after the testae of the writ and there  be a beginning to enclose before the quartersession at Winchester seven  justice out of thirteen be of opinion they can not enter into it the appeal  not be at the next quartersession after the inquisition atkins Lord chancellor  application of this nature do not come frequent before the court but when they  do this court as a officina narrow places must judge accord to rule of law the  only proper question be whether there have be any surprise in the execution of  this writ on the person petition by prevent they from lie evidence before the  jury at the time of the inquisition or before the justice on the appeal and  whether Mr Vennor be not too late now to take it up the inconvenience to the  public in case of this nature be not to be try before I for if I be to enter  into it I shall be set up my jurisdiction in opposition to a jurisdiction  appropriate by act of parliament to the quartersession only I be of opinion  therefore I can take no further notice of this head of inconvenience than as  it may be auxiliary to the surprise suggest by the petition if the jury have  manifest do contrary to the general good of the country it may hay afford a  strong corroborate evidence of surprise the writ of ad quod damnum be test the  that of September notice be give on Monday the that to attend on Friday the  that it be not the shortness of the time where the law have not prescribe any  particular time which be alone sufficient evidence of surprise that the  inquisition be take and execute a fair and open manner be all that be require  then it come to this whether there be a intention of surprise or any actual  surprise neither have be make out to my satisfaction Mr Lucy swear he direct  the sheriff to summon a fair and impartial jury and out of the town in the  neighbourhood all the town but one from which the jury come be contiguous to  the road this be Mr Lucy direction and the undersheriff swear he give order to  his officer to summon the gentleman who live near the road atkins they appear  to be person of great fortune sir Charles mordant the knight of the shire be  among they it be not at all probable these gentleman will do a unpopular thing  in turn the road which be a circumstance at least to show fairness the clause  in the act of parliament to be sure be draw in a very extraordinary manner but  it be not necessary to observe upon that in the present case one general  answer to the whole in regard to the appeal be that Mr Vennor c do actual  appeal to the quartersession and the matter be full hear the place be within  four mile of Warwick the quartersession be hold there and the trial last four  hour No evidence have be lie before I that there be any material witness who  can not he have then from the shortness of the time though the appeal by the  act of parliament be direct to be at the next quartersession yet it be in the  power of the justice to adjourn the quartersession itself to atkins er p  another day or they may have adjourn this particular matter to a subsequent  session another point which have great weight with I be whether the appeal to  the quartersession be not wave the objection of surprise with respect to the  malexecution of the writ and I rather think it be a waiver of it in the case  before Lord chancellor king in the appeal be to the easter quartersession and  the objection be that the enclosure be before Christmas quartersession and  therefore it be dismiss because it be not the next immediate quartersession it  have be true say the statute have put the justice in the room of the traverse  suppose before the act of parliament the petitioner have traverse the  inquisition and issue have be take upon it and a verdict have be find for the  inquisition can the petitioner afterward have apply to this court upon a  suggestion of surprise and a fraudulent and clandestine execution of the writ  certain they can not it have be say that in order to comply with the writ Mr  Lucy must set out a way in his own ground which will communicate atkins with  the highway the terminus ad who for the benefit of the country but it be not  necessary the whole new road shall go through his own soil here Mr Lucy have  bind himself and his heir to keep the road in repair which be more than be  absolute necessary for I be of opinion after he have once make the new road as  it be establish in the room of another in the very same parish who can be at  no further expense with regard to the old road as it be take into Mr Lucy park  the inhabitant ought to have repair the new road when make for the future but  if the new road have lie in another parish there he ought not only to have  make it but he and his heir ought to have keep it in repair because the  inhabitant of another parish have gain no benefit from the old road be lie  into Mr Lucy park as they have nothing to do with the repair of it upon the  whole as there do not appear to I to have be any surprise at the time of the  inquisition and the matter be full lie before the justice on the appeal I  ought not to set aside the writ therefore the petition must be dismiss