EYTON. [ *777 ] WILLIAMS they entirely concurred. The question at the trial was whether an ancient public highway, through certain land of the plaintiff, had been stopped up. It was proved that the highway led up to a gateway, and through it into and across a marsh; that an award was made by the Commissioner, under an Inclosure Act, for stopping up the road, and that a gate was then put up, and a stile by the side of the gate. A certificate that the new roads had been completed, duly *signed by two justices, was put in; the completion of such roads being necessary to put an end to the old right of way. The award was executed in 1830. It was contended that, though the Commissioners had power to stop up the old way, it was not proved that it was effectually stopped, because the concurrence of two justices was required, and no order signed by them was produced or proved to have existed. The learned Judge directed a verdict for the plaintiff, giving leave to the defendant to move to enter a verdict for him. The first point, therefore, is, what is the effect of the Act? Does it require the concurrence of two justices to make the award effectual? Upon that I express no opinion. I assume that such concurrence is required. The time during which the evidence shows that the way has been stopped up, viz., since the year 1821, must be taken into consideration, and the question then is, whether, in the absence of proof that no order of justices was made, there is not evidence to warrant the conclusion that an order existed. For myself, I presume, and porfectly believe, that an order was in fact made. The Act does not say where the order is to be deposited. After so long a period, the presumption omnia rite esse acta arises. In matter of private right, after so long a period, all presumptions of this sort are made, thus the inrolment of a deed may bo presumed; where there has been a conveyance by lease and release, the existence of the lease may be presumed on the production of the release. So livery of seisin, the surrender of a copyhold estate, or a reconveyance from the mortgagee to the mortgagor, may be presumed. As regards public rights, in Rex v. Montague (1) it was held that, in favour of the long enjoyment of a road stopping up a certain creek, it might be presumed that, if a right of public navigation ever existed, it was determined by an Act of Parliament, a writ of ad quod damnum, by Commissioners of Rivers, or by natural causes. I do not go so far as to say that an Act of Parliament might be prosumed. But, the use of the road having been stopped under the circumstances stated in this case, I think there is evidence from which a jury might presume that everything was done [ *778 ] (1) 28 R. R. 420 (4 B. & C. 598). necessary to stop it effectually, and that a verdict would be WILLIAMS wrong if, on the evidence, it was not in favour of the plaintiff. Here the Court is in the position of a jury. CHANNELL, B.: The learned I also think this rule must be discharged. Judgo assumed it to be clear that, at one time, the public highway existed across the plaintiff's land, and he reserved the point for our consideration whether it could be presumed to have been extinguished: in other words, referring to us the question of the validity of the award and the evidence tending to support it. No case has been cited which is exactly in point. It is said that we cannot presume that the award is valid, for two reasons. First, it does not recite the order of two justices. In one of the cases cited there was such a recital. It may be said, if the award had contained a recital, credit must have been given to it, because it could not be supposed that the recital was false; but that puts the case on too narrow a ground. Here such a recital was not necessary, and it is not found; but the presumption is, that what the Commissioner did he did lawfully. We have a right to assume that he had the authority which he purports to have executed. Then it was said that the user was not such as to lead to the presumption that the way was stopped. A gate was put up, and the way ceased to be apparent to the eye. Though the owner may have allowed carts to *pass occasionally, that is not sufficient to prevent the acquiescence of the public from being sufficient to support the award. I think the award must be taken to have been valid, unless there was such a dealing with the property as to be quite inconsistent with it. BOWES v. FOSTER (1). Rule discharged. (2 H. & N. 779-793; S. C. 27 L. J. Ex. 262; 4 Jur. N. S. 95; 6 W. R. 257; 30 L. T. O. S. 306. The plaintiff, being in difficulties and fearing that some of his creditors would issue execution against his goods, agreed with the defendant, who was also a creditor, that there should be a pretended sale of them to him. For this purpose an invoice was made out and a receipt given to the defendant for a sum therein stated to be the purchase-money, and possession of the goods was delivered to the defendant. Afterwards the defendant sold the goods as his own, whereupon the plaintiff brought trover: Held, that no property in the goods passed to the defendant; and that the plaintiff was not precluded from showing that no payment was in fact made and that the transaction was not a real, but a pretended sale. TROVER. Pleas: Not guilty, and Not possessed. Issues thereon. (1) Lee v. Lancashire and Yorkshire Rail. Co. (1871) L. R. 6 Ch. 527, 535, 25 L. T. 77; Taylor v. Bowers (1876) R.R.-VOL. CXV. 1 Q. B. Div. 291, 298, 46 L. J. Q. B. 51 V. EYTON. [ *779 ] 1858. Jan. 29. [ 779 ] At the trial before the Assessor of the Court of Passage at Liverpool, the facts, according to the plaintiff's evidence, were, that in June last, being in difficulties, he was desirous of disposing of his stock in trade and business of a chemist; but fearing that some of his creditors would issue execution against his goods, he agreed with the defendant, who was also a chemist, and a creditor of the plaintiff for 401., that there should be a pretended sale of them to him. For this purpose an invoice of the goods was made out to the defendant, and a receipt was given to him by the plaintiff for the sum of 401., which was therein stated to be the purchase-money of the goods. The plaintiff then delivered possession to the defendant and left the neighbourhood, and an assistant of the defendant took charge of the shop and carried on the business. The defendant afterwards sent the goods to an auctioneer for sale, and the plaintiff, having heard of it, gave notice to the auctioneer that they were his property. The goods were sold, and the plaintiff brought an action *against the auctioneer, who obtained an interpleader order, under which he paid the proceeds into Court, and the defendant was admitted to defend the action. At the conclusion of the plaintiff's case, it was submitted by the defendant's counsel that he ought to be nonsuited, inasmuch as it was not competent for him to allege that the agreement under which he had given the invoice and receipt, and had delivered possession of the goods, was intended as between him and the defendant as a fraud on other creditors. The Assessor overruled the objection, and the defendant's counsel then adduced evidence to prove that the goods were delivered to the defendant in satisfaction of the 40l. which the plaintiff owed him. The Assessor left it to the jury to say whether the transaction was a bona fide sale, or a mere colourable one for the purpose of protecting the goods against any creditor who might issue execution: that in the former case they should find for the defendant, and in the latter for the plaintiff. The jury found a verdict for the plaintiff, and leave was reserved to the defendant to move to enter a nonsuit. Brett, in the present Term, obtained a rule nisi accordingly, against which H. James showed cause: The plaintiff was not precluded from showing the real nature. of the transaction between him and the defendant. The question. is what were the rights of the parties inter se? The effect of the transaction as regards third parties is immaterial. It is said that the sale was fraudulent within the 13 Eliz. c. 5, s. 2, and therefore the plaintiff was estopped. But under that statute fraudulent gifts are only void as against purchasers and creditors: Hawes v. Leader (1). An assignment of goods in fraud of creditors is valid as between parties to the deed, and as between either party and a stranger: Bessey v. Windham (2). (WATSON, B., referred to White v. Morris (3).) The jury have found that there was no sale, but only a pretended one, in order to protect the goods against creditors in general; consequently no property in the goods passed to the defendant. The COURT then called on Brett, to support the rule: There was no question for the jury, and the plaintiff ought to have been nonsuited. Possession of the goods having been delivered under the invoice, the plaintiff is estopped from saying that there was no sale, and that the transaction was a mere fraudulent pretence for the purpose of deceiving creditors. In Sims v. Tuffs (4), a tenant who had paid all his rent, and got his landlord's receipt for it, fearing that his goods would be taken on legal process, agreed with his landlord to destroy the receipt, and that the latter should put in a distress for rent, to protect the goods. The landlord did so, sold the goods and kept the proceeds. The tenant having brought trover for the goods, PARKE, B., who tried the cause, said, "The parties are in pari delicto. I cannot assist the plaintiff in the recovery of the proceeds of this sale. They were both contemplating a fraud. The transaction must be taken as valid between these parties." (WATSON, B.: There the plaintiff had authorized the sale of the goods, and he could not afterwards maintain trover for them. CHANNELL, B.: That case proceeded on the ground of leave and licence. It was conceded that the plaintiff might recover in respect of such of the articles sold as were not included in the inventory.) In De Metton v. De Mellon (5), a Frenchman, domiciled at Lisbon, consigned a cargo which was his property to Nantes, under the name of a native Portuguese who acted as neutralizer." The ship being taken and *brought into an English. port, the cargo was libelled in the Court of Admiralty. (1) Cro. Jac. 270. (2) 66 R. R. 336 (6 Q. B. 166). (4) 6 Car. & P. 207. The BOWES የ. FOSTER. [781] [ *782 ] BOWES v. FOSTER, [ *783] Portuguese, with the privity of the Frenchman, claimed it; and it was ordered to be delivered up to him as neutral property. Lord ELLENBOROUGH ruled that an action for money had and received could not be maintained to recover the proceeds of the cargo, and that ruling was afterwards affirmed by the COURT (1). The ground of that decision was, that the owner of goods who colludes with another in procuring the adjudication of a Court that the goods are the property of the latter, is estopped by his own act from afterwards claiming them as his own. (MARTIN, B.: In that case there was an absolute transfer of the property to the neutralizer: it was a case of trustee and cestui que trust. CHANNELL, B.: There was a decision in rem of a Court having jurisdiction over the subject-matter. The COURT adjudged that the property belonged to a certain person and that it be restored to him: that was an answer to an action against him for money had and received, to recover the proceeds.) In Alner v. George (2), Lord ELLENBOROUGH ruled that if, in an action for goods sold, the defendant proves a receipt in full signed by the plaintiff, evidence is not admissible in answer that the plaintiff has assigned all his effects for the benefit of his creditors: that the action was brought by his trustees in his name: that no money passed when the receipt was given, and that the plaintiff and defendant colluded together to defeat the action. Lord ELLENBOROUGH there said, "There can be no doubt that a receipt in full, where the person who gave it was under no misapprehension and can complain of no fraud or imposition, is binding upon him.” (MARTIN, B.: Notwithstanding a receipt, it may be shown that no money passed. That is the distinction between a receipt *and a release.) In Montefiori v. Montefiori (3), where a person in order to represent another, who was engaged in a marriage treaty, as a man of fortune, gave him a note for a large sum of money, as the balance of accounts between them, whereas no such balance existed, the note was held good as against the maker. Lord MANSFIELD, Ch. J., there said, "No man shall set up his own iniquity as a defence, any more than a cause of (3) 1 W. Bl. 363. (1) 12 East, 234. |