C. P.] THE LONDON, BRIGHTON, AND SOUTH COAST RAILWAY COMPANY v. WALTON. [C. P. WILLES, J.-You may take it that the question | them, and it was the fact of the cart of the defts' has usually been left to the jury. The Court called upon Hopwood for the resp.-There is no evidence that the plt.'s horse moved till the moment of the accident, and there is clear evidence that the defts.' | van ran into the plt.'s cart and forced the horse through the window. [WILLES, J.--I don't think the case turns so much on the precise facts, as how the question should have been left to the jury. It is a great pity that the question which the Ex. Ch. framed so carefully in Tuff v. Warman was not adopted, as is usual with the Superior Courts. The result is, that though we should be of opinion that the verdict was right, we cannot act upon that, as we should be taking upon us the functions of a jury.] I say that the question was substantially left to the jury; the summing up must be taken as a whole, and the first question is, whether the defts.' van occasioned the accident, and if that was brought about by the negligence of the defts.' servant. It being proved that the defts.' van advanced and so caused the accident, the judge treated that as a fact, not as a matter of law. If the court can see that the question was left to the jury they would affirm this verdict, and would treat this, not as a direction in point of law, but as an opinion on the facts. Το constitute contributory negligence, the negligence must be negligence actively contributing to the accident: Dowell v. The General Steam Navigation Company, 5 E. & B. 195. Hannen, in reply, was not called upon. WILLES, J.-I am of opinion that this case should be sent down for a new trial. I say nothing as to what the verdict ought to have been if the question had been properly left to the jury; but I am of opinion that there should be a new trial on the ground that the judge has decided a question of fact in favour of the plt. which ought to have been left to the jury. It is very important in cases which frequently occur that one general rule should prevail, and not one rule in Westminster-hall and another elsewhere, and especially in questions of this kind where the matter to be determined is so peculiarly for the jury. In Tuff v. Warman it has been discussed what is the proper question to be left to the jury. Where there is only negligence of one of the parties, the question is if there was negligence by the deft. Where there is negligence by the plt., it is necessary to consider if that was the direct cause of, or proximately or directly contributed to, the accident, but obviously a question put in that form would perplex the jury if not mislead them; and accordingly in Tuff v. Warman the direction I gave to the jury was objected to, and reasonably, because of the use of the word "directly" in the sense of "proximately." That was a very reasonable objection if the expression was not explained by the other part of the summing up. In the case in the 2 C. B., N. S., my ruling was adhered to by the Court of C. P., and the case afterwards came before the Ex. Ch. and received great consideration, and my ruling was finally sustained and affirmed on the ground that, taking all the summing up together, it was correct. The Court there most distinctly stated the question to be put to the jury in cases of this description, with the desire that the summing-up should be in the terms of the judgment of Wightman J. in that case. Now in this case there was the same sort of evidence of negligence on the part of the plt. as of the defts. Both left their carts standing in the street, and both were without any person to take care of being left standing without any person to take care of it, which the judge left to the jury as evidence of the negligence; therefore, if there was evidence of negligence for the plt., there was evidence on which the jury might act of negligence by the plt. Then was that negligence the proximate or direct cause of, or did it proximately contribute to, the accident? The Court of Ex. Ch., having before them the expressions in Tuff v. Warman, thought that the jury were not misled; and the Court laid down what was the proper question to be left to the jury, and they say, " It appears to us that the proper question for the jury in this, and indeed in all other cases of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the deft., or whether the plt. himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that but for such negligence of want of ordinary care and caution on his part the misfortune would not have happened." Nothing can be more clear than that, and no language is more calculated to inform the jury of the questions within their province. It remains to be considered if the summingup of the judge in this case is in compliance with that statement of the law. Mr. Hopwood ingeniously argued that it did comply with it, and that when the judge said there was no evidence of contributory negligence, he was only expressing an opinion on a matter of fact, and if that was the case there would be no new trial. But looking at the earlier part of the summing up, it appears that that is not so, as he says the questions for the jury are "whether the defts.' van occasioned the accident by running into the plt.'s cart, and whether the same was brought about by the negligence of the defts.' servants, and that a question might have arisen under some circumstances as to whether there was contributory negligence on the part of the plt.," omitting entirely the important word in Tuff v. Warman, "entirely" brought about by the negligence of the defts.' servants. He then said "that he had no hesitation in ruling, on the authority of Addison on Torts, that negligence on the part of a plt. will not disentitle him to recover damages unless, but for that negligence, the accident could not have happened, or if the deft. could by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plt." With the law so laid down, I cannot quarrel, as it is the law laid down in Tuff v. Warman. He further stated "that the plt. was therefore entitled to damages if the van ran into the cart, and that in the present case there was no evidence of contributory negligence on the part of the plt." Therefore, the judge took upon himself to say, that, if there was evidence of negligence on the part of the plt., it was for him to decide if it contributed to the accident. On the ground, therefore, that the judge withdrew from the jury what was within their province, and took upon himself to decide it and sum up in a way not substantially in accordance with the law laid down in Tuff v. Warman, we feel bound to grant a new trial, and as to costs we wish to say that the company should have the costs of this appeal in the event of their succeeding on the new trial, otherwise there will be no costs on either side. KEATING, J.-I am of the same opinion. We are not to question particular statements of a judge in summing up, but here he did substantially withdraw from the jury the question of contributory negligence. It is clear that question was withdrawn by the judge, and advisedly withdrawn. Now, if there was evidence of contributory negligence, that was a question for the jury, and it seems to me that there clearly was. What effect that might have Ex. Cп.] CARR V. LAMBERT, WOODALL, AND OTHERS. [Ex. CH. this trial enjoyed as of right, and without interruption, common of pasture over the said closes in which, &c., in the first and second counts mentioned for all their cattle lerant and couchant upon the said toftstead at all times of the year as to the said toftstead appertaining, and that the plt. wrongfully obstructed the said John Woodall in the enjoyment of the common of pasture by putting up, and at the said time when, &c., wrongfully keeping the said posts and rails on the said closes and pieces of land in which, &c., over which the said John Woodall had the right of common, and thereby preventing him from enjoying the said common of pasture as he was entitled to do, so that without pulling up and destroying the said posts and rails the said John Woodall could not enjoy his said common of pasture, and that the alleged trespasses and grievances in the first and second counts mentioned were respectively committed by the said John Woodall, as such occupier in his own right, and by the other defts, as his servants and by his command, for the purpose of removing the said obstructions and preventions as they might for the cause aforesaid, doing no unnecessary damage to the plt. on the occasion aforesaid. 6. And for a sixth plea the defts, repeat all the allegations in the fifth plea, substituting the period of sixty years for the period of thirty years. The plt. joined issue upon these pleas, and also (Before WILLES, BLACKBURN, KEATING, MELLOR, new assigned that she sued not only for the causes M. SMITH, and LUSH, JJ.) of action therein admitted, but also for trespasses and grievances committed by the defts. in excess of the CARR v. LAMBERT, WOODALL, AND OTHERS. alleged rights in the said pleas respectively menRights of common-Cattle levant and couchant-Domi- tioned, and also on other parts of the said closes nant tenement not supporting the commonable cattle and parcels of land in the declaration mentioned, Change in condition of dominant tenement-Extin- and on other occasions and for other purposes than guishment or suspension of right of common. those referred to in those pleas respectively. The defts., as to the new assignment, relinquished To an action of trespass deft. pleaded and proved the certain pleas pleaded by them so far as they related enjoyment as of right and without interruption, for to the causes of action newly assigned, and brought thirty years before suit, of a right of common over the into court the sum of 40s. and said that the said locus in quo for his cattle, levant and couchant upon sum was sufficient to satisfy the plt.'s claim in reshis toftstead as appurtenant thereto; the toft-pect of the matter therein pleaded to. The plt. stead in question, containing about two acres, was replied to the defts.' plea to the new assignment formerly arable land, but for fifty years past had that the sum paid into court was not enough to been cultivated as an orchard and garden, and on satisfy the claim of the plt. in respect of the matter part of it was a house in which the cattle were stalled; to which the said plea was pleaded. but no portion of the produce of the land was appropriated to feeding them: Held, affirming the judgment of the Ex. (the number of cattle commoned not being in question), that it was not necessary that the cattle should be actually fed upon, or supported by, the produce of the toftstead; and that, the right once created, was not extinguished or suspended by the change in the condition of the toftstead from arable land, so long as it remained in a state capable of being turned at any moment to the purpose of producing food for cattle. This was an appeal by plt. under the provisions of the C. L. P. A. 1854, against the decision of the Court of Ex., in making absolute a rule of that court obtained by the defts. to show cause why the verdict found for the plt. on the 5th and 6th pleas should not be set aside and a verdict entered for the defts. on those pleas, pursuant to leave reserved at the trial, on the ground that the evidence disclosed no right of common in John Woodall. The following is a statement of the case:-The declaration contained two counts. The first count charged the defts. with breaking and entering certain closes of land of the plt., and pulling up and destroying the posts and rails of the plt. standing and being thereon. The second count charged the defts. with injuring the plt.'s reversion in the same closes by wrongfully pulling up and destroying certain posts and rails standing and being on, and parcel of the said closes respectively. The 5th and 6th pleas pleaded by the defts. to the declaration were as follows: 5. And for a fifth plea the defts. say that the deft. John Woodall (a) at the time when they did what is complained of, and thence to the commencement of this suit, was possessed of a toftstead, the occupiers whereof for thirty years next before (a) There were in all seven defts., this plea being pleaded by each of them with the substitution of the name of each particular deft, in lieu of that of John Woodall, and to his case the arguments both below and in the Ex. Ch. were confined The action was tried before Blackburn, J., at York, at the summer assizes of 1864, when, by direction of the learned judge, a verdict was entered for the plt. on (amongst others) the issues on the said fifth and sixth pleas with 40s. damages, leave being reserved to the defts. to move the Court of Ex. to enter a verdict for them on (amongst others) the said fifth and sixth pleas, if the court should be of opinion, on the facts appearing in evidence at the trial as hereinafter stated, that there was evidence to support the right of common set up in those pleas. It was proved at the trial that, at the time of the alleged trespasses and grievances in the declaration mentioned, the deft. John Woodall was possessed of garden and orchard of the extent of about two acres. a toftstead, consisting of a cottage and stable, with a Evidence was given that about fifty years before the commencement of the action this had been planted with fruit-trees, but before that time it was swarth, and had been depastured with cattle. No cattle which it had then supported, or was capable direct evidence was given as to the number of of supporting, and no point was raised at the trial, subject. After a great deal of evidence had been on either side, as to the necessity of proof on this given, the learned judge suggested that, on the evidence, the fact seemed clear that the owner of the the toftstead, but not deriving their sustenance therefrom, toftstead had, as of right, turned the cattle housed on on the locus in quo for more than thirty years, and that the only question was one of law, viz., whether such a right of common was legal, or, in other words, ij such cattle were levant and couchant? Both sides assented to this suggestion, and no other question was required to be, or was in fact, left to the jury, and thereupon the learned judge directed a ver to be entered for the plt., with such leave to the defts. to move to enter a verdict for them as above stated in this case. Ex. Cн.] Ch. CARR V. LAMBERT, Woodall, and others. In pursuance of that leave a rule was obtained by | Field, Q. C. for the defts., in Michaelmas Term 1864, calling on the plt. to show cause why the verdict found for her on the fifth and sixth pleas should not be set aside and a verdict entered for the defts. on the same pleas on the ground that the evidence disclosed a right of common in John Woodall, which rule was, after argument had thereon, made absolute by the Court of Ex. in Hilary Term 1865, and the said verdict was accordingly ordered to be set aside and to be entered for the defts. on the said fifth and sixth pleas. (Reported below 11 L. T. Rep. N. S. 739; 3 H. & C. 499; 43 L. J. 66, Ex.) From that decision the plt. appealed to the Ex. Plt.'s points:-1. That there was no evidence to support the rights of common set up on the fifth and sixth pleas. 2. That the user proved on the part of the defts. was a user by cattle not in any way connected with the toftstead except that they had been housed thereon. 3. That the user required to support the fifth and sixth pleas under the Prescription Act must be a user by cattle levant and couchant on the toftstead. 4. That the mere fact of the cattle having been housed on the toftstead was not evidence of such levancy and couchancy as was necessary to support the pleas. 5. That the cattle by which the locus in quo was depastured were not cattle levant and couchant within the meaning of the pleas. 2. Defts.' points:-1. That the judgment of the Court of Ex. appealed against was right. That the facts proved at the trial support the averment in the fifth and sixth pleas of levancy and couchancy as applied to a claim of right of common. 3. That no question being raised as to the number of cattle which could be maintained upon the toftstead, it was sufficient to show the occupation by the deft. Woodall of cultivated or cultivable land, and unnecessary to shew that the produce of the land, or any of it, was actually supplied to the maintenance of the cattle for which he claimed common of pasture. Serjt. Hayes (with him Kemplay) for plt.-The question raised here was one of a novel kind, and the peculiarity of the case was this, that during the whole of the thirty years for which period the right was claimed by the plea no cattle had been levant and couchant on the land. The land in fact had been used as a garden, and the cattle, de facto, were never upon it at all. The view which had been generally taken, in the cases in the books, of levancy and couchancy was, that it was a measure of the right, or of the potentiality, if he might so express it, of the land to support the beasts for which common was claimed. The plt.'s contention was that the plea was not proved. The whole evidence of the thirty years here was as to land which during all that time did not and could not feed the beasts which plt. contended were not levant and couchant. [WILLES, J.-Is there any plea of prescription?] No; there was no attempt to set up a right from immemorial user, but a claim of right by a thirty years' user under the statute. [Field, Q. C. contra. We could have gone long further back. WILLES, J.-You will have a difficulty, brother Hayes, in inducing the court to say that they will not amend, or to upset the judgment on a point of pleading.] The burden was on defts. to show that the cattle were actually kept on the land. Levancy and couchancy was a matter of fact, and the right should be confined to land capable at the time of supporting cattle. The case was analoous to the old cases, where it was laid down that, cases of damage feasant by cattle straying through fective fences, they could be distrained if they had [Ex. CH. been levant and couchant on the land. It bore analogy, also, to common appendant, which was a right in respect of arable land only, and must be prescribed for as such, and for cattle de facto used in cultivating the land. Such cattle could not be fed off the arable land itself, but it measured the right. All the authorities showed, too, that common appurtenant was claimable only for cattle actually levant and couchant, and housed upon and fed off the produce of the land. It might, no doubt, be prescribed for as appurtenant to a messuage with its appurtenances, because it would be assumed that there was land attached, on which they might be fed. The right of turbary was gone upon the destruction of the house to which it was attached; so, here, the dominant tenement being converted into a state in which it was incapable of supporting cattle, the right of common was gone. Could it be said that it would remain if the land were turned into a reservoir for water? At all events, if not absolutely destroyed, the right was suspended during the time the land remained incapable of being used to feed cattle. He cited Tyrringham's case, 4 Rep. 36 a, 37 b; Bennett v. Reeve, Willes, 227 (per Willes, J. p. 231); Mellor v. Spateman, Ib. 346 c; Field, Q. C. (with him P. Thompson) contra, for defts., contended that the plea was proved. It was not denied by plt. that the land was heretofore in a condition capable of supporting cattle, which it may be admitted was necessary originally to the creation or acquisition of the right. But, in opposition to the contention of the plt., he would submit that though levancy and couchancy formed a measure of the right, yet it was not a measure of how many the land at the present time actually sup ported, but of how many it could support if used lost or suspended by an alteration in the character for that purpose. The right once existing was not of the land. Tyrringham's case, cited contra, was strongly relied on by defts. in support of their view. It was there laid down, p. 37, a, b: "But if a man has had common for cattle, which serve for his plough, appendant to his land, and perhaps of late time an house is built upon part, and some part that (a) for maintenance of tillage, which was the is employed to pasture, and some for meadow, and original cause of the common, in this case the common remains appended, and shall be intended in respect to the continual usage of the common for cattle levant and couchant upon such land. At the and although it beginning all was arable is now pasture or meadow, yet it is arable, id est, it may be ploughed, although it is not now in tillage remained, although in pleading it must still be preand ploughed." The right of common therefore scribed for as appendant to land; for, as it was there also said, "although terra dicitur a terendo quia vomere teritur, yet terra includes all." The cases cited contra did not, when examined, bear out the view sought to be deduced from them by plt., and showed merely that, in pleading a right to either common appendant or appurtenant, it should be averred that the cattle were levant and couchant on, and not fed by the produce of the land. He distinguished that they must of necessity be actually supported and the cases cited contra, and cited in addition: (a) Willes, J. suggested that the word "that" in this pas sage was an error and a misprint probably for the word "not." Cole v. Forman, Noy, 30; Cur. adv. vult. [Div. troyed by the subsequent acts of the proprietor who had had the enjoyment for a long period. The long enjoyment and user which have been proved should be referred to a legal origin, if that can reasonably and consistently be done, and not be looked upon as evidence of a series of trespasses; and as, in this case, they would be consistent with a Feb. 8.-The judgment of the Court (Willes, legal origin, we ought to assume it to be so, unless Blackburn, Keating, Mellor, M. Smith, and Lush, JJ.) the facts show that they could not be attributed was now delivered by WILLES, J.-We are all of to a legal origin, or that the right has since opinion in this case, which was argued before us been either extinguished or suspended. For the yesterday, that the judgment of the Court of Ex. reasons I have stated we think that the enjoywas right and ought to be affirmed. I may ment here was referable to a legal origin which say that in the chief part of iny brother Hayes' argu- I have described, and that there is nothing to ment, on the part of the app., he insisted that show that the right so created was extinguished or the character of the dominant tenement had been suspended. This was the ground upon which the so altered from its condition of pasture land by judgment of the court below proceeded; and I having had buildings placed upon a part of it, and think it must be in the experience of those who have by the rest of it having been converted into an heard trials with reference to the rights of common orchard and garden-ground, that the user for thirty of this description, that that judgment is in accordyears of common by cattle housed upon the ance with the direction usually given in such cases, dominant tenement, but which were not sup- namely, that levancy and couchancy is rather a ported by the produce of it, was not sufficient measure of the capacity of the land, if applied to to establish any right of common which could the purpose of maintaining cattle, than a conexist, in point of law, in respect of that tenement. dition to be literally complied with, as necessary to This argument would have had considerable force the right, by the cattle actually lying down and if it could have been established conclusively that getting up on the land, or by their being actually the character of the dominant tenement had been so sustained by the fruits thereof. For these reasons altered that it could not be applied to the purpose of we think that the judgment of the court below producing fruits on which to feed cattle; if, for ex- | ought to be affirmed. ample, it had been shown to be the case of a town Judgment of the Court of Ex. affirmed. having been built over the whole of the dominant tenement, covering it with buildings and highways; Attorneys for plt., J. W. and J. Flower, 17, Graceor if, as was suggested in the course of the argu-church-street, agents for Carr and Cadman, Gomersal. ment, the tenement had been converted into a Attorneys for defts., Williamson, Hill, and Co., reservoir, then, no doubt, the question might have 10, Great James-street, Bedford-row. arisen whether the right of common was not Where the only known property of a husband who had Dr. Tristram, for the petitioner, moved on March 6th for a writ of sequestration against the personal estate of the resp. which might be in the possession or which might hereafter come to the possession of the trustees. In Wilson v. Metcalfe, 1 Beav. 263, it was laid down that a sequestration might go against a rentcharge. Dr. Spinks, for the resp., contra. The Court made a rule nisi for sequestration, and directed it to be served on the trustees. Div.] HITCHINGS v. HITCHINGS-THE REPEATER v. THE BRAGA, OF KRAGEROE. March 13. Dr. Swabey, for the trustees, appeared to show cause against the rule, and read the following clause of the codicil creating the trust: -"I also give and bequeath unto Frederick Ouvry, Esq., and William James Farrer, Esq., both of, &c., their executors, administrators, and assigns, the yearly sum or rentcharge of 4007. during the life of my brother Lord Thomas Charles Pelham Clinton, to be paid by equal quarterly payments, &c. And I declare that the said F. O. and W. J. F., and the survivor of them, and the executors and administrators of such survivor, and their and his assigns, do and shall stand possessed of and interested in the said last-mentioned yearly sum or rentcharge of 4007. in trust to pay and apply, at such time or times and in such manner as they or he in their or his absolute and irresponsible discretion shall deem proper, and so as not to impose on them or him at law or in equity any trust or obligation with reference to the exercise of such discretion, the whole or such part or parts as they or he shall think fit of the said mentioned yearly sum or rentcharge of 400%. to or for the personal use, support, or benefit of my said brother Lord T. C. P. Clinton. And I direct that the said trustees or trustee for the time being do and shall (but subject and without prejudice to the continued rights of exercising the aforesaid discretionary power of payment and application) stand possessed of the said last-mentioned yearly sum or rentcharge of 400l., or such part thereof as shall not be disposed of under the aforesaid power of payment and application, in trust for the person or persons who shall for the time being be entitled to the actual possession or to the receipt of the rents and profits of the manors, hereditaments, and real estate hereby charged with the payments thereof." The court was asked to grant a special writ against this fund; but it would not allow an instrument to issue unless there was a reasonable prospect of its having effect. It was in the absolute discretion of the trustees to pay any portion of the annuity to the resp., and the court could not intercept the money in their hands before it reached the resp. Moreover, it might be that if Lord Thomas Clinton had any right, as against the trustees, to any portion of the money, that right vested in the assignees under his bankruptcy. Dr. Tristram, for the petitioner, submitted that the resp. could not object to the writ going, but admitted that it should be general. There was no precedent for a special writ against any particular fund. WILDE, J. O., without expressing an opinion as to the power of a sequestrator when appointed to touch the funds in the hands of the trustees, held that the petitioner was entitled to a general writ of sequestration, and directed it to issue accordingly. HITCHINGS v. HITCHINGS. Requisition to take evidence abroad-Interrogatories not A requisition to take evidence was accepted by the judges The Court, under the circumstances, admitted the depo sitions. [ADM. This was a petition by the husband for dissolution of marriage on the ground of the wife's adultery with a person whose name was unknown. It was alleged that the resp., who had been for some time separated from her husband, had given birth to an illegitimate child at Boulogne, and a requisition issued to the judges of the Tribunal de la Premiere Instance of the department to take the examination of M. Philippe Joseph Biencourt and other witnesses on this point. The requisition as usual authorised the persons to whom it was addressed to administer oaths to the witnesses produced, to take the examination of such witnesses, or to permit them to be examined and crossexamined by the counsel or attorney of the respective parties, and to have the examinations reduced into writing. The requisition was accepted by MM. Caron de Fromental and Morard, two of the judges of the court; but it appeared that when the examinations were taken the judges did not put the interrogatories or cross-interrogatories as furnished, and which were at the time before them, but such questions as they deemed "convenient" to the witnesses. An agent for the resp. was present. He did not ask the judge to put any particular question, but, according to the practice, if counse asked that further questions should be put, the | judge would do it. At the hearing of the suit before a special jury, The Queen's Advocate (with him Dr. Tristram), for the petitioner, proposed to read the evidence taken under the requisition. Serjt. Parry (with him Dr. Wambey), for the resp., objected that the terms of the requisition had not been obeyed, and that practically there had been no cross-examination. He referred to Taylor, vol. 1, part 2, ch. 5, s. 477; which were deemed convenient were put, and I The depositions were then read; but the petition was ultimately dismissed, the petitioner having failed to establish the identity of the resp. as the person who gave birth to the child at Boulogne. COURT OF ADMIRALTY. DUBLIN. (Before Judge KELLY.) THE REPEATER V. THE BRAGA, of Krageroe. Rules of the road and foreign ships. Norwegian ship held to be liable in damages and costs for having come into collision with a British ship through breach of the 11th article of the Admiralty Regulations as to rule of the road, such regulations being binding by convention on Norwegian ships, whether the collision take place outside or within British jurisdiction. The Queen's Advocate, Dr. Todd, and Dr. Boyd appeared for the Repeater. |