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on this being completed, that the rights them, or if there be no such committee, of the commoners are extinguished, and then upon deposit in the bank in the the company obtain the absolute interest manner provided in the like case, of the in the soil, divested of all the rights of compensation which shall have been the commoners. It is clear, from all the agreed upon or determined in respect of provisions of the statute, that the initia- such commonable or other rights, it shall tive is with the company.
If the com- be lawful for the promoters, if they think pany do not choose to take that initiative, fit, to execute a deed poll, &c., and thereto extinguish the rights of the common- upon the lands in respect of which such ers, then, it is clear to my mind, that it compensation shall have been so paid or was not intended that those rights should deposited, shall vest in the promoters of be extinguished. If those rights, not the undertaking freed and discharged from being extinguished, are disturbed, the all such commonable or other rights, and ordinary remedy which the commoners they shall be entitled to immediate
posseshave in such a case remains, and inas- sion thereof." I cannot help thinking much as the company do not take the that the effect of this section is to make course prescribed by the statute in order it a condition precedent that they should to get the rights of common extinguished, ascertain the amount of compensation although they have possession by virtue of before being entitled to possession, or to their agreement with, and the compensa- interfere with the rights of the comtion made, to the lord, the rights of the
There is really no inconvenience commoners in the waste of the manor in the matter at all, and I think the case remain just as they were before, and the is nothing but a miserable dispute as to company have only themselves to blame whose duty it is to get the justices to apfor not getting these rights extinguished. point a valuer. If they cannot agree The only doubt raised upon the matter is, with the commoners, and the meeting is that there is no prohibitory clause against ineffectual, the course of proceeding is their taking possession until certain re- simply to get the justices to appoint a quirements have been fulfilled. I do not valuer, and upon his valuation to pay the think that this makes any material dif- money
into the bank, if the commoners do ference. It is plain that the statute does not accept it. Then, and not till then, not intend any rights of common to be they are entitled to the possession of the extinguished without the commoners hav. land, free and discharged from all coming a legal remedy, but it was intended monable and other rights attached to it. that the land should not be used until LUSH, J.-I am of the same opinion. the company had made compensation for The question is whether it is a condition these rights.
precedent to the right of the railway MELLOR, J.-I am of the same opinion. company to disturb the commoners in I think the whole question turns upon their rights of common, that they should this: is it a condition that the company first assess and pay the valuation, either to are to pay before they take possession ? the commoners or into the bank. I am of I think it is. In case the parties do not opinion that it is a condition precedent. agree upon the price to be paid, the com- This being so, the company have interfered pany may go before justices to appoint a with rights of commoners in a manner valuer, and I think it is only on the per- which the Act gave them no power to do. formance of that condition, and upon the I think this is plain from the language of payment into the bank of the amount the two sections 100 and 107. Section which has been ascertained by the valuer 100 says (the learned Judge read the secappointed by the justices, that they are tion down to the words “entitled to the entitled to interfere with the rights of the immediate possession thereof”]. This commoners. And I think that although
“entitled to the possession there is no express prohibitory clause, the of the lands." The section proceeds, prohibition is included in the very terms Subject, nevertheless, to the commonof s. 107, which says, “ Upon payment or able and other rights theretofore affecting tender to such committee, or any three of the same, until such rights shall have
been extinguished by payment or deposit of the compensation for the same in hereinafter provided." Now does this mean that they should hold the land as the lord held it, subject to the rights of the commoners to exercise their rights of common, until those rights have been extinguished, or does it mean, "subject to the rights of the commoners to compensation for the extinguishment of their commonable rights?" I think it means that they are to hold it subject to the rights of the commoners, which rights are to continue just as they would have continued if the lord had not parted with his interest in the soil, that is, a right to enjoy full possession after the commoners' rights have been extinguished by payment. This is made abundantly clear by the 107th section, which provides for the extinguishment of the rights of common, and which shews that until the company have paid, they are not considered to be in possession of the commonable rights. Taking these sections together, I think it is clear that until the company had extinguished the rights of the commoners by payment or deposit, they held the soil which they had purchased of the lord of the manor upon the same terms as the lord himself, that is, subject to the rights of the commoners. They have disturbed the rights of the commoners without having paid the money or deposited it in the bank, and are therefore liable to an action for the disturbance.
HANNEN, J., concurred.
Judgment for the plaintiff.
Attorneys-Holmer, Robinson & Stoneham, for plaintiff; Baxter, Rose, & Norton, for defendants.
1871. Nov. 23.
JONES V. HARRIS AND ANOTHER.
Bill of Sale-Residence of GrantorDescription-Affidavit, Sufficiency of-17 & 18 Vict. c. 36.
In an affidavit filed with the copy of a bill of sale, it was sworn that the said bill of sale was made or given on the 5th day of December, 1870, being the day of the date thereof; "That I was present, and did see the said Isaac Anthony sign and execute the said bill of sale, and that the said Isaac Anthony resides at 'Dynevor Lodge,' and is an auctioneer." It was also sworn in the affidavit, that "the paper writing hereto annexed is a true copy of a bill of sale," made or given by Isaac Anthony, &c. The paper writing, thus referred to and annexed, commenced "This indenture, made the 5th day of December, 1870, between Isaac Anthony, of Dynevor Lodge, in the parish of Llanarthney, in the county of Carmarthen, auctioneer, of the one part, and David Jones, of Wern, in the said parish of Llanarthney, in the county of Carmarthen, gentleman, of the other part:"-Held, that although, if the affidavit was taken alone, the description of the residence of the grantor would be insufficient, the defect might be cured by reference to the bill of sale.
Interpleader issue, in which David. Jones who claimed under a bill of sale given to him, as he alleged, by the execution debtor, Isaac Anthony, was plaintiff, and the execution creditors were defendants.
At the trial, which took place at the last Glamorganshire spring assizes before Mellor, J., the plaintiff produced the bill of sale under which he claimed. It commenced as follows
"This indenture, made the 5th day of December, 1870, between Isaac Anthony, of Dynevor Lodge, in the parish of Llanarthney, in the county of Carmarthen, auctioneer, of the one part, and David Jones, of Wern, in the said parish of Llanarthney, gentleman, of the other part."
The affidavit produced was as follows: I, Walter William Edwards, of Llandilo, in the county of Carmarthen, at
torney's clerk, make oath and say as county of Carmarthen, and as the follows
affidavit was sworn at Llandilo, the rea1. That the paper writing hereto an- sonable inference is that it was near that nexed is a true copy of a bill of sale, place. Several cases were cited in moving made or given by Isaac Anthony to for the rule, but none of them shew that David James, of Wern, in the parish of the description given in this case is not Llanarthney, in the county of Carmar- sufficient. In Pickard v. Bretts (1), the then, gentleman, and of the schedule or affidavit did not contain a description of inventory thereto annexed or therein the occupation at all. That case referred to, and every attestation of the cited in Hewer v. Cox (2), where the deexecution thereof.
scription there given was held to be suffi. 2. That the said bill of sale was made cient, and Blackburn, J., said, “all that is or given on the 5th day of December, required is sufficient information to per1870, being the day of the date thereof. sons dealing with others to enable them
3. That I was present, and did see the to identify those others with the persons said Isaac Anthony sign and execute the giving the bill of sale.” It is submitted said bill of sale, and that the said Isaac that, in the present case, there could not Anthony resides at Dynevor Lodge, and is be any difficulty in identifying the grantor, an auctioneer.
the more so, as by section 7 of 29 & 30 4. That the name, W. Wm. Edwards, Vict. c. 96, one single book is to be kept subscribed as a witness attesting the in the Master's office of the Conrt of execution of the said bill of sale, is Queen's Bench, in which are to be inserted in my handwriting, and that I reside at the particulars of all bills of sale, and Llandilo, and am an attorney's clerk. which “book and every bill of sale, or Sworn at Llandilo,
and affidavit filed as aforesaid, may in the county of
be searched and viewed by all persons at Carmarthen, this W. Wm. Edwards. all reasonable times upon payment ... of 17th day of De
one shilling." cember, 1870.
[COCKBURN, C.J. - No one would say
that Dynevor Lodge alone would be suffi.
Nathl. Davies, cient, but taking the affidavit together A commissioner for taking affidavits in with the bill of sale, it may be that the
the Court of Queen's Benoh at West- description is clear enough.1 minster.
It must always be a question of degree W. Wm. Edwards was called to prove where, as in this case, there is some descripthe execution of the bill of sale.
tion of the residence-Briggs v. Boss (3). It was objected on behalf of the de- [BLACKBURN, J.-The question is whefendants, that there was no sufficient ther, taking the affidavit and the bill of description of the residence of Isaac sale together, the description here given is Anthony in the affidavit above set forth, not sufficient.] but the verdict was entered for the Yes; in Brodrick v. Scale (4), the affi. plaintiff, the learned Judge giving leave davit described the attesting witness as a to the defendants to move to set that gentleman, while in the bill of sale he was verdict aside and enter a verdict, instead described as clerk to a solicitor, and there thereof, for the defendants.
being that discrepancy, it was held that C. E. Coleridge had obtained
the two could not be connected together nisi, on the ground that Isaac Anthony so as to supply the defect, there being no was not so described in the affidavit filed with the bill of sale as to comply (1) 5 Hurls. & N. 9 ; 8. c. 29 Law J. Rep. (N.s.) with the 17 & 18 Vict, c. 36..
Exch. 16. De Rutzen now shewed cause against the (2) 3 E. & E. 429; 3. c. 30 Law J. Rep. (N.s.) rule.—The description of the residence
Q.B. 73. of the grantor is sufficient. Looking Rep. 3 Q.B. 268.
(3) 37 Law J. Rep. (N.s.) Q.B. 101; 8. c. Law at the whole of the affidavit it appears (4) 40 Law J. Rep. (N.s.) C.P. 130; s. c. Law that “Dynevor Lodge” was in the Rep. 6 C.P. 98.
statement that the description in the bill of the residence and occupation of the of sale was the true description. In grantor, the affidavit containing no such Thorpe v. Browne (5), Lord Colonsay said description. Coleridge, J., said, "Striking at p. 236 : “ But there is a great difference out of the 1st section of the statute all between the entire omission of the state. about the affidavit, the bill of sale must ment, and the question whether the state- be filed together with a description of the ment is sufficient for the accomplishment residence and occupation of the assignor. of the purpose of the statute. Omission It is, therefore, impossible to say that such of statement or error of statement is very a description on the bill of sale itself is a different from vagueness of statement; and compliance with the Act." And Crompwhen vagueness of statement is pleaded, ton, J., said, “I entertain no doubt that then it is important to consider what is the affidavit should contain the descripthe object for which the statement is tion of the assignor's residence and required by the statute.”
occupation." Lord Campbell, C.J., said, C. E. Coleridge (Henry James with him), “From what I have now heard, I have no in support of the rule.—The insufficiency doubt that this bill of sale is void on the of the description in the affidavit cannot be ground taken. The statute was passed supplied by reference to the bill of sale, to give security to creditors, and ought to unless the description in the bill of sale is be fully complied with." verified by the affidavit-Pickard v. Bretts [MELLOR, J.-—In that case there was an (1). In that case, Pollock, C.B., said, entire absence in the affidavit of both
The question is as to the sufficiency of the occupation and residence, but in this affiaffidavit. It has been argued that no affi- davit there is a description of the residavit of description is necessary, but the dence, although an ambiguous one.] words of the statute, in our opinion, ex- The observation of Crompton, J., above pressly require it.” This affidavit itself,
This affidavit itself, referred to was cited with approbation it is clear, contains no such description. by Willes, J., in Brodrick v. Scale (4). It was said that it contains such a descrip- Further, the observations of Lord Crantion by reference to the bill of sale. But worth in Thorpe v. Broune (5) are in we do not think that it does. It only favour of the view now submitted to the says that the grantor is the same person;
Court. it does not aver that he is truly described in the bill of sale. It is quite consis
COCKBURN, C.J.-I am of opinion that tent with the affidavit, that the descrip
this rule must be discharged. There is tion there given is not the true one. no doubt that the Act of Parliament Therefore, the bill of sale is invalid, and requires that an affidavit of the descripthe foundation for the claim fails. So,
tion of the residence and occupation here, there is no statement in the affidavit of the person giving a bill of sale that the grantor's residence is correctly
shall be filed with the bill of sale or a described in the bill of sale. See also true copy thereof, but it does not specify Allen v. Thompson (6).
with what degree of particularity the [BLACKBURN, J.- In Pickard v. Bretts description of the residence of such person (1) Crompton, J., refers to Routh v. Roublot must be set forth. We must see, there(7), and says that it was a different case, fore, what is the meaning of the words but it seems to be in favour of the suffi. ` description of the residence" as used ciency of the affidavit now before us.]
in the Act. It was intended that there That case is not inconsistent with Hatton
should be a reasonably sufficient descripv. English (8), where a bill of sale was held
tion of the residence, such that persons to be void which contained a description interested in knowing whether a bill of
sale has been given or not, may be able to (5) Law Rep. 2 H.L. 229.
discover whether the person to whom an (6) i Hurls. & N. 15; s. c. 25 Law J. Rep. advance of money or a delivery of goods (n.s.) Exch. 249. (7) 28 Law J. Rep. (N.s.) Q.B. 240.
on credit is contemplated, is the person (8) 7 E. & B. 94 ; 6. c. 26 Law J. Rep. (n.s.)
who has made a disposition of his proQ.B. 161.
perty by a bill of sale. I think that the
result of the argument and of the autho- ambiguity is cleared up by reference to the rities which have been brought before us bill of sale. Any party who wishes to is that we must come to the conclusion ascertain who was the Isaac Anthony that the description of the residence con- mentioned in the affidavit, may do so by tained in this affidavit, when the affidavit referring to the copy of the bill of sale; is taken by itself, is not sufficient. he will then find that though “Dynevor Plainly, “Dynevor Lodge" is insufficient Lodge” in the affidavit may be ambito give information to any person, not guous, the description of the residence of possessed of local knowledge, of the resi- Isaac Anthony who gave the bill of sale is dence of Isaac Anthony, the grantor. It made positively certain. There is upon was held by the House of Lords in Thorpe the affidavit a description of the residence v. Broune (5) that the description “ for- which was intended to be a true descripmerly of Ballina Park, in the county of tion, and the ambiguity is removed by Wexford, and now of the city of Dublin, reference to the bill of sale. Routh v. Esquire,” was sufficient. No one could Roublot (7) is a strong authority to shew doubt that when the residence named is that the bill of sale may be referred to. some place of note, or such as is well BLACKBURN, J.-I am also of opinion known to every one, the name alone of that this rule should be discharged. such place might be sufficient, but Section 1 of 17 & 18 Vict. c. 56 requires nothing could be more absurd than to that every bill of sale, &c., shall, together suppose that the mere name of the house with an affidavit of the time of such bill of of a person entirely unknown would be sale being made or given, and a description sufficient when there might be five hun- of the residence and occupation of the dred people of the same
person making or giving the same, be nothing to enable a person about to filed, &c. The Courts have construed advance money or deliver goods to this to mean that the description of the another to make enquiry whether he had residence shall be by affidavit. IIewer v. given a bill of sale or not. I feel that the Cox (2) and Pickard v. Bretts (1) shew description of the residence of the grantor, that where the affidavit is silent as to the if it were simply “Dynevor Lodge, description of the residence it will not would be insufficient, but then the ques- do, because the object which the legistion arises whether, by reference to the lature had in view was to ensure that copy of the bill of sale, which is filed there should be such description on oath, together with the affidavit, the deficiency and that where it is not sworn to at all is not supplied. It is true that in Pick- the statute is not complied with. But ard v. Bretts (1) the Court of Exchequer when, as in the present case, a descripheld that the description in the bill of
tion of both the residence and the occupasale could not be used to cure the defect tion of the grantor is given in the afliin the affidavit then in question. I agree davit, and the deponent swears that the that we should be bound by the authority bill of sale was given by Isaac Anthony, of that case if it applied to the question who resides at Dynevor Lodge, and is an now before us, but I do not think that it auctioneer, and that the paper writing does; there was an entire absence of annexed is a true copy of the bill of sale, the description of the occupation, and if, the question comes to be whether the dein this case, there was an entire absence scription of the residence is not sufficient. of the description of the residence of the I think the principle is nowhere better grantor, I should say that we could not laid down than by my lato brother Hill refer to the bill of sale. But there is an in Hewer v.Cox (2), where almost the samo attempt to give the residence, that is to words were used as now by my Lord, say, "Dynevor Lodge." Upon the affi- that the object of the statute was to prodavit, therefore, the residence is left tect creditors—those who had dealings or ambiguous, and the identity of the were likely to have dealings with the pergrantor is not fixed, but only by reason sons making bills of sale—and accordingly of the ambiguity of the expression. I do in Briggs v. Buss (3), where the attesting not see why we should not hold that the witness described himself as residing at New Series, 11.- Q.B.