feel myself bound by the decision as governing the present case, unless this is distinguishable. But the present case seems to me to be distinguishable. I quite agree that the passage quoted by my Brother Martin from Lord Kingsdown's judgment in Miner v. Gilmour (1) very clearly, as well as accurately, states the law applicable to running streams. I think, however, that the decision in Stockport Waterworks Company v. Potter (2) was quite in accordance with the law as so stated; and, further, if the decision in the Stockport Waterworks case was wrong, then it appears to me that Lord Kingsdown's statement would require qualification. The Stockport Waterworks case in effect decided that a riparian proprietor cannot grant away his water rights apart from his estate, so as to place the grantee in the same position with respect to the other riparian proprietors as he occupied himself. Now if that is wrong, then a riparian proprietor is not entitled to use the stream for extraordinary purposes, provided he abstains from thereby interfering with other proprietors, as Lord Kingsdown says, but "provided he also abstains from interfering with the grantees of other proprietors." I am not aware of any such additional restriction on the right of a riparian proprietor. It would go well nigh to destroy his rights altogether, for that can scarcely be called a right which is subject to an indefinite restriction, unascertained and practically unascertainable. I consider that the rights of a riparian proprietor with respect to the stream are limited only by those of persons in a similar or analogous position with respect to the stream as himself. These rights he can easily ascertain, and by that means ascertain his own. But he has no means of ascertaining who may be grantees, or what may be the value of their grant. If, therefore, riparian proprietor grants to some one, not such a proprietor, a right to abstract water from the stream, as in the Stockport Waterworks case, I think the grantee can sue only the grantor for any interference with him. If, however, two adjoining riparian proprietors agree to divert the stream, so that it shall run in two channels instead of one, the water passing again into the old stream below their land, and flowing down to the lower proprieto as before, the case is, I think, different. What is done is apparent to all, and any use that may be made of the new stream, as to turn (1) 12 Moo. P. C. at p. 156. (2) 3 H. & C. 300. 1866 NUTTALL บ. BRACEWELL. 1866 NUTTALL V. BRACEWELL. a mill for instance, is as apparent as if the mill were upon the old stream. What is done by the two proprietors may be supposed to be a more convenient way of making use of the flow of water while it in no way diminishes or affects the rights of the other proprietors. This distinction is alluded to in the judgment of the majority in Stockport Waterworks Company v. Potter (1), where it is said: "The case where a riparian proprietor makes two streams instead of one, and grants land on the new stream, seems analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights." Now, in the present case, Coates Mill is on an estate abutting on the river. Prior to 1804, the water came to the mill from the stream through a goit and a reservoir, all on the mill-owner's estate. Since then there has been either an additional supply of water or a substituted one, I am not sure which, through a goit leaving the river higher up on the estate of another proprietor. Now it seems to me that the goit is to all intents and purposes a mere stream, and any person having land upon it would have the rights of a riparian proprietor, viz. to use the water in any way not interfering with others. I see no reason why the law applicable to ordinary running streams should not be applicable to such a stream as this, for it is a natural stream or flow of water, though flowing in an artificial channel. It may be that the case of an entirely artificial stream, as one flowing from a mine for instance, would be different; but that an artificial stream may be on the same footing as a natural one as regards the rights of riparian proprietors is held in Sutcliffe v. Booth. (2) I think, therefore, that in the present case the plaintiff has a right of action, and the rule for a new trial ought to be discharged. Rule discharged. Attorneys for plaintiff: Risley & Stoker, agents for W. Paget, Skipton. Attorneys for defendant: Raw & Gurney, agents for Henry Robinson, Settle. HUFFER v. ALLEN AND ANOTHER. Action for maliciously signing Judgment-Malicious Arrest-Estoppel-Judgment-Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), s. 27. A. having issued a writ of summons against B., specially indorsed for 287., B.,without appearing to the writ, paid 107. to A., on account of the debt. A. afterwards, under the Common Law Procedure Act, 1852, s. 27, signed judgment for default of appearance, for the full amount of 287. and costs, and issued a ca. sa., indorsed for that amount, under which B. was arrested, and paid the sum demanded. B. having brought an action against A. for maliciously and without probable cause signing judgment and issuing execution : Held, that, whilst the judgment stood for the full amount, it estopped the plaintiff from denying the correctness of the judgment or of the execution. Quare, whether, if the judgment had been rectified, by reducing it to the amount for which it ought to have been signed, as in Hodges v. Callaghan (2 C. B. (N.S.) 306), the action would have been maintainable? DECLARATION. First count, that the plaintiff being indebted to the defendants in the sum of 287., the defendants commenced an action against the plaintiff, in the Queen's Bench, for the recovery of the debt by a writ specially indorsed and personally served; that the plaintiff, before appearance, and before judgment, paid to the defendants, and the defendants accepted, the sum of 107. on account of the debt: that the defendants, after such payment, wrongfully and maliciously, and without reasonable or probable cause, signed judgment for default of appearance for the full amount of the debt of 287. and costs, and thereby wrongfully and maliciously, and without reasonable or probable cause, procured the said judgment to be signed for the recovery of a debt wherein the sum recovered exceeded the sum of 207., exclusive of costs; that the defendants wrongfully and maliciously, and without reasonable or probable cause, issued a writ of ca. sa. against the plaintiff, indorsed for 327., for the debt of 287. and costs and costs of execution, under which the plaintiff was arrested, and was compelled, in order to procure his discharge, to pay the full amount indorsed and sheriff's fees. Averment that at the dates of the judgment and of the writ only 187. was due from the plaintiff to the defendants, which the plaintiff was ready to pay; and claiming damages in respect of the 107., the extra fees and costs, and the detention. Demurrer and joinder. 1866 Nov. 14. 1866 HUFFER ข. ALLEN. Second count, similar to the first, except that it only stated that the defendants recovered judgment against the plaintiff for 287., that "the now plaintiff paid to the now defendants, and they accepted and received from him, the sum of 107. for and on account of the said debt and costs in the said action," and that the defendants wrongfully, &c., issued a ca. sa. for the full amount, &c. Seventh plea to the second count, that the plaintiff ought not to be admitted to say that the plaintiff paid to the defendants, and that the defendants accepted, the sum of 107. on account of the debt and costs in the said action, for that the plaintiff made the supposed payment of the sum of 107. after the commencement of the said action and before judgment, and that after such supposed payment, such proceedings were thereupon had in that action, that afterwards, and before the suit, it was considered by the judgment of the Court in the said action that the now defendants should recover against the now plaintiff the whole of the said debt and costs in the said action; and the said judgment still remains in force; and this the defendants are ready to verify; wherefore they pray judgment, if the plaintiffs ought to be admitted, &c. (1) Demurrer and joinder. Hayes, Serjt. (Grantham with him), in support of the demurrer to the declaration, and of the plea. The two demurrers come to the same point; the second count leaving the time of payment uncertain, the plea fixes it to a time before judgment. In each case, therefore, the defendants' contention is that the judgment is an estoppel. The pleadings shew a judgment of the Court for the full amount, and whilst that stands unimpeached, it is conclusive evidence as between the parties that the whole amount for which it was signed was due. It is an estoppel which can be removed by nothing but fraud; in the absence of fraud, the existence of the judgment is evidence of its correctness, and none the less so for being signed for default of appearance under 15 & 16 Vict. c. 76, s. 27. The case of Gilding v. Eyre (2) is not in favour of the plaintiff, for there the payment was made after judgment, and what was (1) There was also a replication of fraud to this plea, which was demurred to; but that replication and demurrer were withdrawn. (2) 10 C. B. (N.S.) 592; 31 L. J. (C.P.) 174. complained of was the issuing of a writ for the full amount after the judgment had been partially satisfied. But here, in order to impeach the issuing of the writ, it is necessary to impeach the judgment itself, for if the judgment was right the writ was right also. The plaintiff has adopted the wrong course. If the judgment was in fact signed for too much, he ought to have applied to the Court to reduce the amount, as was done in Hodges v. Callaghan (1); and in that case he would probably have been allowed to bring no action, as the act complained of might very likely be due to a mistake, the defendants' attorney signing judgment in ignorance of the payment. On H. Matthews (Griffits with him), in support of the declaration and the demurrer to the plea. If the plaintiff is unable to maintain this action he has no remedy for the wrong he has suffered, for De Medina v. Grove (2) shews that no action for money had and received will lie for money paid under such circumstances. the other hand, he is compelled to pay the money in order to obtain his liberty, and has suffered by the compulsory payment and by the imprisonment a double wrong, for which he ought to have redress. It is not necessary to impeach the judgment, for the judgment is evidence only that the amount for which it was signed was due at the time when it was sued for; it does not, therefore, conclude the plaintiff here from saying that the writ was wrongly issued. But, if necessary, Hodges v. Callaghan (1) is an authority for saying that the judgment ought not to have been signed for the full amount, and is therefore irregular. . [BRAMWELL, B. It is certainly said there that the judgment ought to have been signed only for the sum really due; but that ought must mean morally, not legally. Suppose the payment after action disputed, or the fact of payment, or the authority of the person to whom it was made, or the appropriation of it, how can the regularity of the judgment depend upon these matters ?] On the other hand, these matters cannot, as was said by the Court in Gilding v. Eyre (3), be tried upon affidavit by a judge, and how, except in the present form of action, can they be sub (1) 2 C. B. (N.S.) 306; 26 L. J. (C.P.) 171. (2) 10 Q. B. 152, 172. VOL. II. C (3) 10 C. B. (N.S.) 592; 31 L. J. (C.P.) 174. 3 1866 HUFFER v. ALLEN. |