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who instituted proceedings, and I do not think the conviction can stand if steps were taken in proper time to quash it. The other question is whether the application was made in time within the Act of Geo. 2. It is true that if the application was made on the Tuesday when the hearing took place before the Judge, it would not be in time, but there is nothing in the Act to say that that day would not be in time for the hearing; and I think that the application was made on the Saturday and only heard on the Tuesday. MELLOR, J., concurred.

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unjust that Nash should be annexed to the Union, as it had never had any paupers, and that if the guardians sought to enforce their order they would be put to great expense, and would be unable to obtain a distress warrant to enforce payment, as the magistrates had a discretion whether they would issue their warrant or not, and he had reason to know they would exercise this discretion in his favour.

The guardians having notwithstanding applied to the Justices to issue their distress warrant under the 2 & 3 Vict. c. 84, Mr. Carne appeared on the hearing and opposed the application, contending that it was extremely unjust that Nash should be annexed to the Union, and that he should be burdened with the rates, but not alleging that it was not legally annexed, nor urging any other reason why the warrant should not

Justices' Warrant under 2 & 3 Vict. c. 84-issue. The magistrates, after hearing Mr. Carne,
Discretion of Justices-Extra-parochial Place
-Annexing to Union-20 Vict. c. 19.

An extra-parochial place was by an order of the Poor Law Board duly annexed to a Union. A contribution

order having been made by the guardians of the Union upon C, the sole owner of this extra-parochial place, and the amount not having been paid, the guardians applied to Justices under the 2 & 3 Vict. c. 84, for a distress warrant to enforce payment. At the hearing before the Justices, C contended that the order annexing the extra-parochial place to the Union was unjust, but he admitted that it was legally annexed, and urged no other reason why he should not pay. The Justices, thereupon, refused to issue their warrant, adding, at C's suggestion, "in the exercise of our discretion:"

Held, that the discretion given to the Justices by the Act was a "legal" discretion, and that, as the magis trates had not acted in the exercise of such a discretion, the Court would compel them to issue their warrant.

This case came on for argument upon a rule obtained by Lush calling on the defendants to show cause why they should not issue their warrant to levy by distress the sum of 147. 11s., being the amount ordered to be paid by C. N. Carne, by a contribution order of the guardians of the B Union. At the time of the passing of the 20 Vict. c. 19, there was an extra-parochial place called "Nash," containing only a few hundred acres, of which Mr. Carne was the sole owner. By an order of the Poor Law Board, made in 1862, Nash was annexed to the B Union, and the guardians of that Union accordingly made an order upon Nash for contribution to the Union expenses. This order Carne refused to obey, and the Justices having declined to enforce it by distress warrant, the Court of Queen's Bench made absolute a rule to compel them to. (See Regina v. Boteler, 32 L. J. M. C. 91, where the facts are fully stated; also Overseer of Staple Inn v. Holborn Union, 32 L. J. M. C. 181; 2 N. R. 331.) After this decision the guardians made another contribution order on Mr. Carne, who thereupon wrote to the guardians stating that he considered it extremely

refused to issue their warrant, adding, at Mr. Carne's suggestion, "in the exercise of our discretion." The present rule was consequently obtained to compel them to issue their warrant.

The 2 & 3 Vict. c. 84, s. 1, under which they are empowered to issue their warrant, provides that “in every case in which any contribution by overseers or other officers of any parish of moneys required by the board of guardians, or persons acting as guardians for such parish or for any Union which shall include such parish for the performance of their duties, shall be in arrear, it shall be lawful for any two Justices acting within the district wherein such parish shall be situate . to summon the said overseer or other officers to show cause. . . . . why such contribution has not been paid, and after hearing the complaint. . . . . if the Justices at such sessions shall think fit, by warrant under their hands and seals to cause the amount of the contribution so in arrear to be levied and recovered."

....

Giffard showed cause against the rule.

The words used in the 2 & 3 Vict. c. 84, under which this application was made to the Justices, are, "It shall be lawful for any two Justices . . . . . if they shall think fit," to cause the amount of the contribution in arrear to be levied. It is clear, therefore, that the Justices had a discretion whether they would issue their warrant or not; and as they have exercised that discretion, this Court will not enter into the question whether they have exercised it wisely. The terms of the rule are not that the Justices should "hear and determine," but if this rule is made absolute, they will be compelled without any discretion to issue their warrant.

Lush, Q.C., and Poland, in support of the rule.

What the magistrates have here called a discretion was a determination not to exercise the powers given by the statute, because they considered the provisions of the Act under which this place was annexed to the Union unjust. The discretion given by the Act is a legal discretion, and does not empower the Justices to act or not, according to their mere arbitrary will or

caprice. Lord Coke thus defines discretion :—“ Discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to their private wills and affections; for, as one saith, talis discretio discretionem confundit,"

Rooke's Case, 5 Rep. 100.

Where, therefore, it is manifest that the case was within the purview of the Act, and that there was no ground brought before the magistrates on which they could properly, in the exercise of their discretion, refuse to issue their warrant, this Court will compel them to do so.

[COCKBURN, C.J.-But the difficulty is, can we say to the Justices-"You shall do it," if the Act gives them a discretion, even though they have not properly exercised it?]

The intention of the statute was to enable the Justices to do by warrant what this Court before did by mandamus; and whatever would not be an answer to a mandamus, is no answer before the Justices.

They referred to

Newbould v. Coltman, 6 Exch. 189.

COCKBURN, C.J.-We have laid down in more than one case that where magistrates have a discretionary power, this Court will not order them to act, when they have exercised their discretion, but it is clear on the facts, that the Justices have not exercised any discretion which can be considered as the discretion which, in point of law, they were justified in exercising. This extra-parochial place having been made part of the Union, it became liable by law to contribute its share to the general expenditure of the Union, and there can be no doubt that the magistrates ought to have issued this warrant. It is clear that the reason why they did not do so was because they were invited to exercise their jurisdiction in a matter which it is admitted on all hands was not a matter for their discretion. They went on the ground that the annexation of this place to the Union, or in other words, the operation of the Act was unjust. It is clear they had no power to enter into that question, and it seems to me to amount to their saying, "We know that on all other grounds we ought to issue the warrant, but we take upon ourselves to say that the law is unjust, and therefore we will not issue it." All the authorities show that this is not such a discretion as they are entitled to exercise. We should be setting a very bad example if we were to hold that they could illegally exercise a discretion on such a ground as this, and therefore this rule must be made absolute with costs.

BLACKBURN, J.-I am of the same opinion. My only difficulty is what, on the affidavits, we are to consider to be the facts? I agree that where Justices have a discretion, the proper form of remedy is not to apply for a warrant, but to apply for a mandamus to compel them to exercise their jurisdiction. It is clear here

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that they have a discretion. But if the facts amount to this, that the Justices say, Although we think it fit on every legal ground, we will not issue the warrant," then they have exercised all the discretion they were entitled to, and may be compelled to issue the warrant. My only doubt has been, whether the facts do really amount to that.

MELLOR, J.-I agree with my Lord as to the true result of the facts, and I think it would be a very mischievous example if we were not to make this rule

absolute.

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was committed on

To an action of trespass for breaking and entering plaintiff's garden, the defendent pleaded a user as of right for forty years of a privilege of entering and passing over the said garden. At the trial it was proved that the defendant had exercised, as of right, the said privilege during a period of more than forty years, up to February, 1861. The trespass in respect of which the action was brought, the 3rd of February, 1863, and the action was com menced on the 10th of February, 1863. From February, 1861, up to the commencement of the action, the defendant was forcibly prevented by the plaintiff from enjoying his easement; but during the earlier part of such interruption, and up to a period less than twelve months before the commencement of the action, the defendant was in correspondence with the plaintiff, denying the plaintiff's right to obstruct him, and seeking to negotiate a settlement of their respective claims. The Judge, having left to the jury the question whether or not the defendant had "acquiesced in or submitted to" the interruption for the space of a year, within the meaning of section 4 of the Prescription Act, the jury found a verdict for the defendant, saying that he had not so acquiesced:

Held, 1st, that the Judge was right in leaving the question of acquiescence or non-acquiescence to the jury; and that the bringing of an action or suit is not essential to the proof of non-acquiescence, but it may be proved by evidence of any acts showing a resistance by the claimant against the obstruction of his easement.

2ndly, that the defendant was entitled to avail himself of his forty years user, although he had not exercised any actual enjoyment of the easement during a period of more than a year immediately preceding the commencement of the suit.

DECLARATION.-1st count, in trespass for breaking and entering plaintiff's garden, and breaking a hole in

the door of the said garden; 2nd count, for breaking down and destroying a part of the wall of the plaintiff's.

Pleas 1st, not guilty; 2nd, not possessed; 3rd, that one Green was possessed of a cottage and yard, with a privy standing, and being upon the said yard, and adjoining the said garden of the plaintiff's, and that the occupiers of the said cottage, yard, and privy, for twenty years before this suit enjoyed as of right, and without interruption, the privilege of going from a certain public highway over the said garden to the said privy, and from the privy to and over the garden to the highway, at all reasonable times, for the purpose of carrying away from time to time the soil in the said privy, for the more convenient occupation of the said yard and privy, and that defendant, being Green's servant, committed the alleged trespasses in the proper exercise of the privilege aforesaid, and doing no unnecessary damage; 4th, a similar plea, substituting forty years for twenty years. Issues thereon.

At the trial, before Blackburn, J., at the York Summer Assizes, 1863, it was proved that during a period of more than forty years immediately preceding the 22nd of February, 1861, the defendant had actually enjoyed as of right the easement claimed in the third and fourth pleas, of going through a door and across a garden of which the plaintiff was tenant under Sir W. Lawson, for the purpose of cleaning out a privy which stood upon the defendant's premises. On the 22nd of February, 1861, the defendant received the following notice from Sir W. Lawson :—

During the remainder of the year 1862 the defendant several times sought to enter the garden in exercise of his alleged right, but was always forcibly prevented from doing so; and on the 3rd of January he attempted to effect a forcible entrance, but was prevented by superior force employed by the plaintiff.

On the 3rd of February he succeeded in entering the garden and pulled down part of the wall which had been built by the plaintiff; but the plaintiff, immediately he became aware of what the defendant was doing, removed him from the garden by force, and on the 10th of February, 1864, the writ was issued in the present action in respect of the acts committed by the defendant on the 3rd of January and the 3rd of February.

Upon these facts, the learned Judge left the following questions to the jury:-1st. Was there a user as of right for forty years? 2nd. Was there a user as of right for twenty years? 3rd. Was the interruption acquiesced in or submitted to by the defendant for the space of one year? The jury answered the two first questions in the affirmative, and the last in the negative; and thereupon a verdict was entered for the defendant upon the third and fourth pleas. There were other issues, some of which were found for the plaintiff, while upon others the jury was discharged, but they are all immaterial to the argument.

In Michaelmas Term, Temple, Q. C., for the plaintiff, obtained a rule nisi for a new trial, on the ground that the learned Judge misdirected the jury in telling them that there was evidence of a sufficient user to comply with the statute, and in telling them there was

a year within the meaning of the statute,

"William Cartwright, -It appears there is a great doubt as to your having a right of way through Philip evidence of an interruption acquiesced in for more than Bennison's garden: the case will be inquired into to-morrow afternoon, or to-morrow at latest, so you must wait till then before you can pass through the garden."

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Price, Q.C., and Kemplay, showed cause. The point is a new one, and turns entirely upon the construction of section 4 of the Prescription Act, 2 & 3 Vict. c. 71. By the 2nd section of that Act it is provided that where any way or watercourse, or other like easement, "shall have been actually enjoyed by any person claiming right thereto, without interruption for

the full period of twenty years," the claims thereto shall be defeated or destroyed only by showing "that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as hereinbefore last mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."

Then by the 4th section it is enacted, that "each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period immediately next before some action or suit wherein the claim or matter to which such period may relate shall

have been or shall be brought into question, and that no act or other matter shall be deemed an interruption within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made."

Therefore section 2 says that an uninterrupted enjoyment as of right for forty years shall give an indefeasible title; and then section 4 explains that "uninterrupted" means "not broken by any interruption that was acquiesced in or submitted to for the space of a year." There is nothing, either in the language of the sections or in any decision upon it, to show that the acquiescence or submission there spoken of means anything but acquiescence or submission in the ordinary sense of the words-i.e., assent and nonresistance; and the jury have found upon ample evidence that there was no interruption in that sense of the word. The construction contended for by the plaintiff would import words into the statute which the Legislature has not thought fit to insert. Suppose that this alleged interruption for two years had taken place in the middle of the forty years instead of at the end, and that the plaintiff had enjoyed his easement for fifteen or twenty years between such obstruction and the bringing of the plaintiff's suit. It could not be contended then that the question of acquiescence was not rightly left to the jury. But whether the interruption takes place in the middle or at the end of the enjoyment is immaterial.

The question is not, whether there has been nonuser, but whether there has been acquiescence,

Carr v. Foster, 3 Q. B. 581.

Temple, Q. C., and T. Jones, in support of the rule. It is not disputed that the defendant had through out notice of the obstruction to his alleged right; therefore, if he has acquiesced in the interruption, he is bound by his acquiescence.

Previously to the passing of the Prescription Act, it would have been necessary for the defendant to prove an immemorial user. But the statute relieved him from that necessity upon certain conditions. Those conditions, limiting as they do the rights of the owner of the servient tenement, are distinct and stringent; and it is clear the Legislature intended that there should be no vague or indefinite test of non-acquiescence, but that it should be defined unmistakably by the bringing of some suit or action

within a year.

Under the Prescription Act the claimant of an easement has no right whatever until an action is commenced. He has only an inchoate right, which does not become fixed and absolute until the writ is issued; and whether he ever acquires any right at all, depends upon when the writ is issued. If the claimant uses a road for twenty years as of right without disturbance, and then permits an obstruction to exist for a year

without bringing an action, he has no right. That was the point decided in

Ward v. Robins, 15 M. & W. 257; and that decision is conclusive upon the present case. Parke, B., there says (p. 241), "The Act of Parliament is so worded that, though there have been fifty years of enjoyment to the time of the act done, that is no defence, unless it continues up to the time of the suit." It is not necessary that the plaintiff should contend that this is a reasonable state of things; it is enough that it has been so decided. In

Wright v. Williams, 11 M. & W. 77;

Flight v. Thomas, 11 Ad. & E. 688, In Dom.
Proc. 8 Cl. & Fin. 231;

Cooper v. Hubbuck, 12 C. B. (N.s.) 456 ;
it was assumed that you must bring your action in
order to acquire a right. Here actual enjoyment of
the way had ceased nearly two years before action
brought.

has been a non-acquiescence of the defendant in the CROMPTON, J.-The question whether or no there interruption of his casement turns upon the construction of section 4 of the Prescription Act; and, upon looking at the words of that section, I entertain no which the Judge could not have kept from them. I doubt that this was a matter for the jury, and a matter find nothing in the statute to show that non-acquiesaction. The party must, it has been said, show an cence can only be shown by the bringing of a suit or enjoyment continued up to the time of the suit. But

suppose we were considering whether or no an interruption, within the meaning of the statute, had occurred in the middle of the forty years, we should look generally at all the facts evidencing acquiescence or non-acquiescence, without inquiring whether an action the cases, that where an obstruction occurs at the had been brought. It does not, therefore, follow from end of the time, the enjoyment must be continued up to the bringing of the suit, or that non-acquiescence the words "submitted to or acquiesced in" refer to can be shown only by bringing a suit. I think that submission or acquiescence in their ordinary sense, and not merely to default in bringing an action. It is not because it has been found necessary to put constructions which lead to an absurd result upon some parts of the Act, that we should extend those constructions to other parts of the Act where we are under no necessity to do so. acquiescence spoken of in the fourth section is an I am, therefore, of opinion that the acquiescence to be found by the jury, and that here the case was properly left to the jury.

MELLOR, J.-I also am of opinion that this rule should be discharged. The natural meaning of the words "submitted to or acquiesced in" appears to me to be very plain. That expression refers to the case where a party has by his conduct allowed an obstruction to be effected, and to remain in force, without any act on his part to show that he resists the

obstruction. Here, it appears to me, there was a very proper question to be submitted to the jury, and the jury were perfectly warranted in saying there had been no acquiescence within the meaning of the statute.

BLACKBURN, J.—I am of opinion also that I took the right course at the trial. The matter turns upon the second and fourth sections of the Prescription Act. [The learned Judge read the sections.] The person therefore claiming a right of way must have enjoyed it as of right for the full period, and it is admitted that such full period must expire at the time of the commencement of some suit or other. Now it is contended by Mr. Temple and Mr. Jones that it follows from the above that, when the Act says that "no act or other matter shall be deemed to be an interruption, within the meaning of the statute, unless the same shall have been or shall be acquiesced in for one year,"-it must be taken to mean that a party has acquiesced in and submitted to an interruption for the space of a year unless he has, within that time, issued his writ. I do not agree in that construction. When we find a wall built to obstruct the claimant, and thereupon remonstrances from him followed by letters and negotiation between him and the other party, I can hardly think that such period of negotiation was a period of acquiescence. That, therefore, leaves less than twelve months of submission to the obstruction, whether we reckon to the act of alleged trespass or to the issuing of the writ; and I myself think that the question, if it arose, would turn rather upon when the act was done than upon when the writ was issued. I am therefore of opinion that both the direction and the verdict were right, and the rule must be discharged.

Rule discharged. Note.-An application for leave to appeal was made by Temple, Q.C., but refused by the Court.

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Charter-party-Condition as to Capacity of Ship -Proportions of "weight and measurement" goods.

A charter-party was entered into at Liverpool for a voyage to Sydney. The charterer was to have the whole reach of the vessel, and was to pay for her use 1,550l., on condition of her taking a cargo of not less than 1000 tons of weight and measurement." The ordinary mode of loading cargoes in the port of Liverpool, is to put one-third of "weight" goods, to two-thirds of "measurement" goods. In the case of cargoes for Sydney, however, owing to the preponderance of heavy over light goods destined for that port, vessels are ordinarily loaded with a much greater proportion of "weight" goods. The vessel in question was capable of carrying

1000 tons of weight and measurement, proportioned in the usual manner, but was not capable of carrying that amount if the weight and measurement goods were proportioned in the manner usual with Sydney cargoes:—

Held, that the condition had been complied with, as it only warranted that the ship would carry the speci

fied amount if loaded in the ordinary way, without regard to its destination.

This was an action tried before Blackburn, J., at the Liverpool Summer Assizes, 1863.

The declaration was for non-payment of freight under a charter-party, which is set out at length in the report of the argument of this case, on demurrer, in the 32 L. J. Q. B. 179. The material provisions of the charter-party, so far as regards the present question, were as follows:-The charterer was to have the full reach of the vessel's hold, from bulk-head to bulk-head, for a full and complete cargo of lawful merchandise; upon a voyage from Liverpool to Sydney, N.S. W. And he was to pay "for the use and hire of the said vessel, in respect of the said voyage, the sum of 1,5501. in full, on condition of her taking a cargo of not less than 1000 tons of weight and measurement."

Upon the argument of the demurrer above-mentioned, the Court held, that the breach of this condition was not an absolute answer to an action for the freight, as the ship had sailed, and the charterer had derived some benefit; but it was suggested that the breach of the condition might be an answer pro tanto in reduction of damages.

At the trial, the main question in dispute was, whether this condition had been complied with or not. It was proved, that the ordinary mode of loading vessels was to put in one-third of "weight," and twothirds of 66 measurement" goods. That is to say, onethird of heavy goods, where the tonnage is calculated by weight, and two-thirds of light goods where the tonnage is calculated by measurement. And it was proved that by adopting these proportions the vessel could be loaded to the best advantage, being thus most completely filled, and at the same time sunk to the proper water-line. Evidence was, however, given to show that, owing to the great preponderance of heavy over light goods in the cargoes usually dispatched to Sydney, it was practically impossible as a general rule to adopt this system of loading. In such ships the proportions usually were twothirds weight to one-third measurement, and the holds of such vessels were consequently not completely filled. The learned Judge left to the jury the following questions:-1st. Was the vessel capable of taking a cargo of 1000 tons of weight and measurement if loaded in the manner usual in the port of Liverpool? This question the jury answered in the affirmative. 2nd. Was the vessel capable of taking a cargo of 1000 tons weight and measurement if loaded with an ordinary Sydney cargo? This the jury answered in the nega

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