on this being completed, that the rights of the commoners are extinguished, and the company obtain the absolute interest in the soil, divested of all the rights of the commoners. It is clear, from all the provisions of the statute, that the initiative is with the company. If the company do not choose to take that initiative, to extinguish the rights of the commoners, then, it is clear to my mind, that it was not intended that those rights should be extinguished. If those rights, not being extinguished, are disturbed, the ordinary remedy which the commoners have in such a case remains, and inasmuch as the company do not take the course prescribed by the statute in order to get the rights of common extinguished, although they have possession by virtue of their agreement with, and the compensation made, to the lord, the rights of the commoners in the waste of the manor remain just as they were before, and the company have only themselves to blame for not getting these rights extinguished. The only doubt raised upon the matter is, that there is no prohibitory clause against their taking possession until certain requirements have been fulfilled. I do not think that this makes any material difference. It is plain that the statute does not intend any rights of common to be extinguished without the commoners having a legal remedy, but it was intended that the land should not be used until the company had made compensation for these rights.

MELLOR, J.-I am of the same opinion. I think the whole question turns upon this: is it a condition that the company are to pay before they take possession? I think it is. In case the parties do not agree upon the price to be paid, the company may go before justices to appoint a valuer, and I think it is only on the performance of that condition, and upon the payment into the bank of the amount which has been ascertained by the valuer appointed by the justices, that they are entitled to interfere with the rights of the commoners. And I think that although there is no express prohibitory clause, the prohibition is included in the very terms of s. 107, which says, "Upon payment or tender to such committee, or any three of

them, or if there be no such committee, then upon deposit in the bank in the manner provided in the like case, of the compensation which shall have been agreed upon or determined in respect of such commonable or other rights, it shall be lawful for the promoters, if they think fit, to execute a deed poll, &c., and thereupon the lands in respect of which such compensation shall have been so paid or deposited, shall vest in the promoters of the undertaking freed and discharged from all such commonable or other rights, and they shall be entitled to immediate possession thereof." I cannot help thinking that the effect of this section is to make it a condition precedent that they should ascertain the amount of compensation before being entitled to possession, or to interfere with the rights of the comThere is really no inconvenience in the matter at all, and I think the case is nothing but a miserable dispute as to whose duty it is to get the justices to appoint a valuer. If they cannot agree with the commoners, and the meeting is ineffectual, the course of proceeding is simply to get the justices to appoint a valuer, and upon his valuation to pay the money into the bank, if the commoners do not accept it. Then, and not till then, they are entitled to the possession of the land, free and discharged from all commonable and other rights attached to it.

moners.

LUSH, J.-I am of the same opinion. The question is whether it is a condition. precedent to the right of the railway company to disturb the commoners in their rights of common, that they should first assess and pay the valuation, either to the commoners or into the bank. I am of opinion that it is a condition precedent. This being so, the company have interfered with rights of commoners in a manner which the Act gave them no power to do. I think this is plain from the language of the two sections 100 and 107. Section 100 says [the learned Judge read the section down to the words "entitled to the immediate possession thereof”]. This must mean, "entitled to the possession of the lands." The section proceeds, "Subject, nevertheless, to the commonable and other rights theretofore affecting the same, until such rights shall have

been extinguished by payment or deposit of the compensation for the same in manner 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.

Bill of Sale-Residence of Grantor— Description-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 follows

1. That the paper writing hereto annexed is a true copy of a bill of sale,

or given by Isaac Anthony to David James, of Wern, in the parish of Llanarthney, in the county of Carmarthen, gentleman, and of the schedule or inventory thereto annexed or therein referred to, and every attestation of the execution thereof.

2. That the said bill of sale was made or given on the 5th day of December, 1870, being the day of the date thereof.

3. 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.

4. That the name, W. Wm. Edwards, subscribed as a witness attesting the execution of the said bill of sale, is in my handwriting, and that I reside at Llandilo, and am an attorney's clerk. Sworn at Llandilo,

in the county of Carmarthen, this 17th day of De- | cember, 1870.

W. Wm. Edwards.

Before me, Nathl. Davies, A commissioner for taking affidavits in the Court of Queen's Bench at Westminster.

W. Wm. Edwards was called to prove the execution of the bill of sale.

It was objected on behalf of the defendants, that there was no sufficient description of the residence of Isaac Anthony in the affidavit above set forth, but the verdict was entered for the plaintiff, the learned Judge giving leave to the defendants to move to set that verdict aside and enter a verdict, instead thereof, for the defendants.

C. E. Coleridge had obtained a rule nisi, on the ground that Isaac Anthony was not so described in the affidavit filed with the bill of sale as to comply with the 17 & 18 Vict. c. 36..

De Rutzen now shewed cause against the rule. The description of the residence of the grantor is sufficient. Looking at the whole of the affidavit it appears that "Dynevor Lodge" was in the

county of Carmarthen, and as the affidavit was sworn at Llandilo, the reasonable inference is that it was near that place. Several cases were cited in moving for the rule, but none of them shew that the description given in this case is not sufficient. In Pickard v. Bretts (1), the affidavit did not contain a description of the occupation at all. That case was cited in Hewer v. Cox (2), where the description there given was held to be sufficient, and Blackburn, J., said, "all that is required is sufficient information to persons dealing with others to enable them to identify those others with the persons giving the bill of sale." It is submitted that, in the present case, there could not be any difficulty in identifying the grantor, the more so, as by section 7 of 29 & 30 Vict. c. 96, one single book is to be kept in the Master's office of the Court of Queen's Bench, in which are to be inserted the particulars of all bills of sale, and which "book and every bill of sale, or copy and affidavit filed as aforesaid, may be searched and viewed by all persons at all reasonable times upon payment . . . of one shilling."

[COCKBURN, C.J.-No one would say that Dynevor Lodge alone would be suffi cient, but taking the affidavit together with the bill of sale, it may be that the description is clear enough.]

It must always be a question of degree where, as in this case, there is some description of the residence-Briggs v. Boss (3).

[BLACKBURN, J.-The question is whether, taking the affidavit and the bill of sale together, the description here given is not sufficient.]

Yes; in Brodrick v. Scale (4), the affidavit described the attesting witness as a gentleman, while in the bill of sale he was described as clerk to a solicitor, and there being that discrepancy, it was held that the two could not be connected together so as to supply the defect, there being no

(1) 5 Hurls. & N. 9; s. c. 29 Law J. Rep. (N.S.) Exch. 18.

(2) 3 E. & E. 429; s. c. 30 Law J. Rep. (N.S.) Q.B. 73.

Rep. 3 Q.B. 268. (3) 37 Law J. Rep. (N.s.) Q.B. 101; s. c. Law

(4) 40 Law J. Rep. (N.s.) C.P. 130; s. c. Law Rep. 6 C.P. 98.

In

statement that the description in the bill of sale was the true description. Thorpe v. Browne (5), Lord Colonsay said at p. 236: "But there is a great difference between the entire omission of the statement, and the question whether the statement is sufficient for the accomplishment of the purpose of the statute. Omission of statement or error of statement is very different from vagueness of statement; and when vagueness of statement is pleaded, then it is important to consider what is the object for which the statement is required by the statute."

C. E. Coleridge (Henry James with him), in support of the rule. The insufficiency of the description in the affidavit cannot be supplied by reference to the bill of sale, unless the description in the bill of sale is verified by the affidavit-Pickard v. Bretts (1). In that case, Pollock, C.B., said, "The question is as to the sufficiency of the affidavit. It has been argued that no affidavit of description is necessary, but the words of the statute, in our opinion, expressly require it." This affidavit itself, it is clear, contains no such description. It was said that it contains such a description by reference to the bill of sale. we do not think that it does. It only says that the grantor is the same person; it does not aver that he is truly described in the bill of sale. It is quite consistent with the affidavit, that the description there given is not the true one. Therefore, the bill of sale is invalid, and the foundation for the claim fails. So, here, there is no statement in the affidavit that the grantor's residence is correctly described in the bill of sale. See also Allen v. Thompson (6).

But

[BLACKBURN, J.-In Pickard v. Bretts (1) Crompton, J., refers to Routh v. Roublot (7), and says that it was a different case, but it seems to be in favour of the sufficiency of the affidavit now before us.]

That case is not inconsistent with Hatton v. English (8), where a bill of sale was held to be void which contained a description

(5) Law Rep. 2 H.L. 229.

(6) 1 Hurls. & N. 15; s. c. 25 Law J. Rep. (N.S.) Exch. 249.

(7) 28 Law J. Rep. (N.s.) Q.B. 240.

(8) 7 E. & B. 94; s. c. 26 Law J. Rep. (N.s.) Q.B. 161.

of the residence and occupation of the grantor, the affidavit containing no such description. Coleridge, J., said, "Striking out of the 1st section of the statute all about the affidavit, the bill of sale must be filed together with a description of the residence and occupation of the assignor. It is, therefore, impossible to say that such a description on the bill of sale itself is a compliance with the Act." And Crompton, J., said, "I entertain no doubt that the affidavit should contain the description of the assignor's residence and occupation." Lord Campbell, C.J., said, "From what I have now heard, I have no doubt that this bill of sale is void on the ground taken. The statute was passed to give security to creditors, and ought to be fully complied with."

[MELLOR, J.-In that case there was an entire absence in the affidavit of both occupation and residence, but in this affidavit there is a description of the residence, although an ambiguous one.]

The observation of Crompton, J., above referred to was cited with approbation by Willes, J., in Brodrick v. Scale (4). Further, the observations of Lord Cranworth in Thorpe v. Browne (5) are in favour of the view now submitted to the Court.

result of the argument and of the authorities which have been brought before us is that we must come to the conclusion that the description of the residence contained in this affidavit, when the affidavit is taken by itself, is not sufficient. Plainly, "Dynevor Lodge" is insufficient is insufficient to give information to any person, not possessed of local knowledge, of the residence of Isaac Anthony, the grantor. It was held by the House of Lords in Thorpe v. Bronne (5) that the description "formerly of Ballina Park, in the county of Wexford, and now of the city of Dublin, Esquire," was sufficient. No one could doubt that when the residence named is some place of note, or such as is well known to every one, the name alone of such place might be sufficient, but nothing could be more absurd than to suppose that the mere name of the house of a person entirely unknown would be sufficient when there might be five hundred people of the same name, and nothing to enable a person about to advance money or deliver goods to another to make enquiry whether he had given a bill of sale or not. I feel that the description of the residence of the grantor, if it were simply "Dynevor Lodge,' would be insufficient, but then the question arises whether, by reference to the copy of the bill of sale, which is filed together with the affidavit, the deficiency is not supplied. It is true that in Pickard v. Bretts (1) the Court of Exchequer held that the description in the bill of sale could not be used to cure the defect in the affidavit then in question. I agree that we should be bound by the authority of that case if it applied to the question now before us, but I do not think that it does; there was an entire absence of the description of the occupation, and if, in this case, there was an entire absence of the description of the residence of the grantor, I should say that we could not refer to the bill of sale. But there is an attempt to give the residence, that is to say, "Dynevor Lodge." Upon the affidavit, therefore, the residence is left ambiguous, and the identity of the grantor is not fixed, but only by reason of the ambiguity of the expression. I do not see why we should not hold that the NEW SERIES, 41.-Q.B.

ambiguity is cleared up by reference to the bill of sale. Any party who wishes to ascertain who was the Isaac Anthony mentioned in the affidavit, may do so by referring to the copy of the bill of sale; he will then find that though "Dynevor Lodge" in the affidavit may be ambiguous, the description of the residence of Isaac Anthony who gave the bill of sale is made positively certain. There is upon the affidavit a description of the residence which was intended to be a true description, and the ambiguity is removed by reference to the bill of sale. Routh v. Roublot (7) is a strong authority to shew that the bill of sale may be referred to.

BLACKBURN, J.-I am also of opinion that this rule should be discharged. Section 1 of 17 & 18 Vict. c. 56 requires that every bill of sale, &c., shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, be filed, &c. The Courts have construed this to mean that the description of the residence shall be by affidavit. Hewer v. Cox (2) and Pickard v. Bretts (1) shew that where the affidavit is silent as to the description of the residence it will not do, because the object which the legislature had in view was to ensure that there should be such description on oath, and that where it is not sworn to at all the statute is not complied with. But when, as in the present case, a description of both the residence and the occupation of the grantor is given in the affidavit, and the deponent swears that the bill of sale was given by Isaac Anthony, who resides at Dynevor Lodge, and is an auctioneer, and that the paper writing annexed is a true copy of the bill of sale, the question comes to be whether the description of the residence is not sufficient. I think the principle is nowhere better laid down than by my late brother Hill in Hewer v. Cox (2), where almost the same words were used as now by my Lord, that the object of the statute was to protect creditors-those who had dealings or were likely to have dealings with the persons making bills of sale-and accordingly in Briggs v. Boss (3), where the attesting witness described himself as residing at

C