CHILCOTE

v.

YOULDON.

[ *20 ]

take the fact to be found that this encroachment was of more than twenty years' standing before the Commissioners' first meeting; and that it therefore is, by reason of sect. 52, to be deemed and taken to be an ancient inclosure. (His Lordship read the section.) From that section it would seem that the encroachment was not land subject to be inclosed. Sect. 47, which relates to claims to be sent in to the valuer, applies only to claims of right in alieno solo. Mr. Coleridge appears to admit that; but to contend that the respondent ought to have taken his objection before the valuer, obtained his determination upon it, and had the matter reheard by the Commissioners or an Assistant Commissioner, under sect. 55. Sect. 49, however, provides that nothing in the Act "shall extend to enable the valuer, or the Commissioners, or any Assistant Commissioner, to determine the title of any lands, or to determine any right between any parties contrary to the actual possession of any such party (except in cases of encroachment as hereinafter mentioned)." In the course of the argument I was struck with the necessity of ascertaining to what the exception there mentioned applies; and I think that it applies to cases of encroachment the title to which depends upon lapse of time; and that it is confined to encroachments falling under sect. 50, as being of less than twenty years' standing, and not to those falling under sect. 52. No doubt the valuer may deal with any part of an encroachment. which is proved to have been made within twenty years, though the rest of it is within the protection of sect. 52. But no such question arises in the present case. The entire encroachment having been made more than twenty years ago, it is an ancient inclosure, and the valuer had no power to inclose it either in whole or in part.

(CROMPTON, J. was absent.)

BLACKBURN, J.:

I am of the same opinion. Stat. 8 & 9 Vict. c. 118, by sect. 11, defines what are lands subject to be inclosed, and it thence appears that they are lands subject to rights of common. Sect. 25 provides for an application to the Commissioners, with a view to an inclosure, by persons interested in such land. It may often happen, as it did in Turner v. Blamire (1), that a dispute arises whether part of the land proposed to be inclosed is to inclosure not. And I am far from saying that it might not have been expedient to give the Commissioners power to decide what lands were, and what were not, so

subject;

and to make their decision, subject to an appeal, final. But 1

(1) 94 R. R. 724 (1 Drew. 402).

q".

YOULDON.

[ 21 ]

fail to find any provision to that effect in the Act. The "objec- CHILCOTE tions" to the inclosure, into which the Assistant Commissioner is, by sect. 25, to inquire, do not appear to me to apply to a dispute as to whether the land proposed to be inclosed is subject to inclosure or not. Sect. 49 prohibits the valuer and Commissioners from determining any question of title to land, "except in cases of encroachment as hereinafter mentioned; " except, that is, in cases of encroachment for less than twenty years, which fall under *the operation of sect. 50. There is nothing to show that the Commissioners may conclusively give themselves jurisdiction by finding, contrary to the fact, that an encroachment is of less than twenty years' standing. That being so, I think that the justices have power, at the hearing of an application to them by the valuer, under stat. 15 & 16 Vict. c. 79, s. 13, to determine the fact which settles whether or not the encroachment, possession of which he seeks to recover, is to be deemed to be parcel of the land subject to be inclosed; the fact, namely, whether or not the encroachment took place within the last twenty years. Then arises the question whether they were precluded from determining in favour of the respondent by the circumstance that the encroachment in dispute was inserted in the Commissioners' map of the lands to be inclosed. But, as I have already said, however desirable it might have been to make the Commissioners' decision conclusive, I find no power given to them by the Act finally to determine such a matter; and such a power could only be given them by express enactment. Judgment for the respondent.

SMITH v. MUNDY.

(3 El. & El. 22-34; S. C. 29 L. J. Q. B. 172; 6 Jur. N. S. 977; 2 L. T. N. S. 373; 8 W. R. 561.)

The property in the halves of bank notes, sent in payment of a debt due to the receiver from a third person, with an intention on the part of both sender and receiver that the other halves are to follow, remains in the sender until he sends the second halves; the payment being, until then, inchoate and conditional. It is therefore open to the sender, at any time before sending the second halves, to disaffirm the transaction and redemand the first halves from the receiver; who is liable to an action for refusing to return them. SPECIAL case stated, after writ issued and without pleadings, by consent and by order of BLACKBURN, J.

The action was brought by the plaintiff against the defendant for the non-return by the defendant to the plaintiff of the half parts of two Bank of England notes of the plaintiff, one for 20l., and the other for 101., which had been sent by the plaintiff to and received by the defendant, and which the plaintiff alleged the defendant was bound to redeliver to the plaintiff on request, which was made; and also for the wrongful conversion by the

1860. June 1.

[ 22 ]

defendant of the plaintiff's said half parts of the said two Bank of England notes; and also for the detention from the plaintiff of his said half parts of the said two notes.

On 12th August, 1859, the plaintiff entered into an agreement with one George Williams, of Esperanza, Torquay, in the county of Devon, for entering into a partnership with the said G. Williams, in regard to certain furnished houses at Torquay, of which the said G. Williams was possessed. The following is a copy of the agreement.

"ESPERANZA, TORQUAY, SOUTH DEVON. "Memorandum of agreement made this 12th day of August, 1859, between George Williams, of Esperanza, Torquay, South Devon, on the one part, and George Smith, of 124, Great Dover Road, London, on the other part; that is to say, that the house Esperanza is under lease to the above-named George Williams for a term of *7, 14, and 21 years, at a rental of 911. per annum; so likewise is the house Albyn Lodge, at a rental of 90l. per annum; so likewise is the house called Cambourne, at the rental of 130. yearly. The said George Williams assures George Smith that hist liabilities for furnishing the said houses do not exceed 7001, their original cost being 1,000l.; that the said George Williams. agrees to accept of the said George Smith as a partner, to share equally the profits and liabilities in connection with the said houses, on condition of his paying into a Bank, at Torquay or elsewhere, to the joint credit of the above-named partners, the sum of 500l. This paper to be binding on each until a deed of partnership is executed.

"Witness, ALICE WILLIAMS."

"GEORGE WILLIAMS. "GEORGE SMITH."

The sum of 5001. has never been paid by the said George Smith into any Bank, at Torquay or elsewhere, to the joint credit or otherwise. At the time of the making of the said agreement Williams represented to the plaintiff that he was under certain liabilities, and owned certain debts in respect to the furnishing of the said houses; and that, amongst others, he owed the defendant, who was a china and glass merchant at Bristol, 351. for china and glass which had been supplied by the defendant to Williams for furnishing the said houses. On 17th August, 1859, the plaintiff wrote, addressed and sent by post to the defendant a letter of which the following is a copy. "124, GREAT DOVER ROAD, S.E. LONDON,

"Mr. THOS. G. MUNDY.

"Aug. 17, 1859.

SIR, I presume Mr. George Williams, of Esperanza, *Tor

quay, has informed you of my having joined him in his line of business, and that the debts contracted after this date will be in the joint names of Williams and Smith. I enclose you half notes for 35l., and in acknowledging the same please forward me a statement of the full amount due to you by Mr. Williams, and oblige.

"Your obedient servant,

"GEORGE SMITH."

"P.S.-I find I have not a 5l. note, but will enclose it in.

next.

"No. 80,730, March 20, 1859

"No. 85,543, June 20, 1859.

£20

10

£30."

The half notes for 30l., referred to in the above letter, were the halves of two Bank of England notes, and the same were inclosed in the said letter and sent therein by post to the defendant. The numbers and description of the halves of the said two notes so enclosed and sent in the said letter to the defendant were and are as follows. No. 80,730, dated 20th March, 1859, for 201.; also No. 85,543, dated 20th June, 1859, for 10l.

The above-mentioned letter, and the said halves of the said two Bank of England notes inclosed therein, were duly received by the defendant. They were sent to the defendant with the sanction and authority of the said George Williams. The said notes were the notes of the plaintiff at the time of the sending the same; and at that time, and at the time of the receipt by the defendant of the halves of the said two notes, the plaintiff was under no other contract or liability than that, if any, shown by the said agreement, together with the facts above stated, to send the same; nor was the plaintiff under any obligation *except as aforesaid, to pay the defendant the said debt so due to him from the said G. Williams, or any part thereof. On 18th August, 1859, the defendant, on receipt of the said letter, wrote and, paying the postage, sent by post to the plaintiff, who in due course received from him, a letter of which the following is a

copy.

66

SIR,-I am in receipt of your favour enclosing the first half of a twenty and a ten pound note, and on receipt of the second halves will send a stamped acknowledgment. According to your request, I herewith enclose a statement of account due from Mr. Williams for goods sent: also the amount, as near as I can

[ *25]

at present give, of the goods which are selected to be sent for the new house.

"I am, Sir, yours, &c.,

"THOS. G. MUNDY.

[ 26 ]

"Amount of account against Mr. Williams 291. 8s. 3d. "The amount of goods selected for the new house amounts to from 551. to 601."

None of such goods mentioned in such letter, excepting the 291. 8s. 3d., which had been supplied previously to the said agreement, were supplied to the said George Williams or to the plaintiff.

On 19th August, 1859, the plaintiff wrote, addressed and sent by post to the defendant, who duly received, a letter of which the following is a copy.

"Mr. T. G. MUNDY,

"124, GREAT DOVER ROAD, S.E., LONDON,

"Aug. 18, 1859. "SIR, I beg to request that no goods be debited to me, or use made of half notes' I sent to you, until you again hear from me. "Your obedient servant,

"GEORGE SMITH."

The half notes referred to in the last letter were the halves of the said two Bank of England notes sent by the plaintiff to and received by the defendant as hereinbefore mentioned. On 22nd August, 1859, the plaintiff wrote, addressed and sent by post to the defendant, who duly received the same, a of which the following is a copy.

“Mr. T. G. MUNDY.

66

letter,

"LONDON, August 22, 1859. SIR,-In consequence of having withdrawn from any partnership with Mr. Williams, of Torquay, I request the return of the half notes I sent to you on the 17th instant, for 30l. "And oblige, yours, &c.,

At this time the defendant had no knowledge that the said agreement of 12th August, 1859, subsisted between the plaintiff and the said George Williams. The half notes referred to in the last letter were the halves of the said two Bank of England notes sent by the plaintiff to and received by the defendant as hereinbefore mentioned.

On 21st December, 1859, one Henry Gribble, being the plain