Ex.] BENNETT v. THE LONDON AND NORTH-WESTERN RAILWAY COMPANY. liable to the payment of toll both upon going and upon returning. The 27th and 29th sections were also referred to, showing that hackney coaches and postchaises are to pay each time of passing with a fresh hiring. POLLOCK, C.B.—I am of opinion that the decision of the police magistrate in this case was quite right, and that the conviction should be confirmed. This conveyance does not come within the terms of the 28th section of the Ac: of Parliament 10 Geo. 4, c. 59. The word "stage" used there shows, to my mind, very clearly what the clause means. Stage-coaches, &c. conveying passengers for hire shall pay for each time of passing along any of the roads; but I do not think it was the intention of the Legislature, or the object of| the Act, that an empty cart paying once for going through the gate should be compelled to pay again returning laden on the same day: it was not a stage van or waggon within the terms of the Act. The pay was for the use of the waggon, in respect of that particular owner, not for the carriage of the goods. The owner of the vehicle was not a carrier of goods, he was the letter out of a van. The Act applies to carriages conveying goods for hire, and not as here, where this vehicle was expressly engaged for the carriage of the goods. MARTIN, B.—I also think it is clear that the respondent was not subject to pay this double toll, for when the 10 Geo. 4 is looked at, it shows very plainly what was intended. The 26th section says that horses drawing different carriages on the same day through the gate shall pay each time of passing. Sect. 27, that any postchaise or other carriage is to pay each time of passing with a fresh hiring. Sect. 29, the same as to hackney coaches, chariot, or cabriolet, that they shall pay each time of passing with a fresh hiring. And the 28th section, upon which reliance is placed for imposing the tolls, was, that the toll shall be paid for every horse, &c. drawing any stage-coach, van, caravan, waggon, or other carriage conveying passengers or goods for pay, hire, or reward, for each time of passing; but this does not come within the terms of that clause, for it was nothing more than sending a van and two horses out to Hammersmith to bring a load of goods from there into London. The goods being at Hammersmith, a van was sent out there to bring them in. The contract was for the removal of the goods with the van, and this was not a van conveying goods for hire as intended by the 28th section. BRAMWELL, B.-I am also of opinion that the police magistrate, Mr. Dayman, was right, and right for the reasons he has himself given in the case stated for us to determine. WILDE, B.-I am of the same opinion. On the words of the Act, I think the van and horses employed for the removal of this furniture were not liable to the double toll; and I agree with the Lord Chief Baron to render them so it should be a stage-coach, van, or carriage conveying passengers or goods for hire, which this was not; it was a contract or an engagement on the part of the owner for the removal of a certain quantity of furniture. Judgment for the respondent, with costs. April 27 and 30. BENNETT V. THE LONDON AND NORTH-WESTERN Plaintiff convicted of felony after action-Defendant The plaintiff brought an action to recover the value of goods alleged to have been sent by him to the defendants to be safely carried and delivered, but which were lost by the defendants, or never delivered by them. The defendants paid 10s. into court in satisfaction for the hampers in which the goods were said to [Ex. have been sent, and pleaded the general issue to the residue of the plaintiff's claim. The plaintiff was afterwards convicted of felony. The defendants then pleaded this by a plea puis darrien continuance. The plaintiff confessed it, accepted the 10s. paid into court, and took it out in satisfaction of his claim, and signed judgment for the costs of the action. Upon motion to set aside the judgment so signed, or to stay all further proceedings in the suit: Held, that the plaintiff was by the 23rd rule of Hilary Term Rules 1853, and the 22nd and 23rd rules of pleading under the C. L. P. A., entitled to sign judgment for the costs. This was an action brought to recover from the railway company the value of certain hampers of boots and shoes represented to have been sent by the plaintiff on the defendants' line of railway, and by them lost. The defendants believing that no such goods had been sent at all by the plaintiff, applied for and obtained an order of a learned judge for particulars of such goods, with the invoices for same, &c. After a good deal of delay and much trouble, some kind of particulars were supplied. The defendants subsequently pleaded, first, the general issue; and, secondly, payment of a sum of 10s. into court for the hampers. Afterwards the plaintiff was indicted for receiving stolen goods, tried and convicted, and sentenced to two years' imprisonment with hard labour. Defendants then pleaded puis darrien continuance, a plea stating the conviction, &c. The defendant or his attorney confessed that, then accepted the 10s. out of court in satisfaction of the cause of action, and entered a nolle prosequi to the rest of the claim, and signed judgment for the costs of the action. A rule nisi was then obtained by the defendants to set aside the judgment, or to stay all further proceedings in the cause. Geo. Brown showed cause. The plaintiff was entitled to take the 10s. out of court, and sign judgment for the costs of the action. The 23rd rule of Hilary Term 1853 says in reference to "discontinuance," "to entitle a plaintiff to discontinue after plea pleaded, it shall not be necessary to obtain the defendant's consent, but the rule shall contain an undertaking on the part of the plaintiff to pay the costs, and a consent that if they are not paid within four days after taxation defendant shall be at liberty to sign judgment of non pros. ;" and by the 22nd rule of pleading under the C.L.P.A., "a plea containing a defence arising after the commencement of the action may be pleaded, together with pleas of defence arising before the commencement of the action, provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs of the cause up to the time of the pleading of such first-mentioned plea." 23rd. When a plea is pleaded with an allegation that the matter of defence arose after the last pleading, the plaintiff shall be at liberty to confess such plea, and shall be entitled to the costs of the cause up to the time of pleading such plea. [POLLOCK, C.B.-The plaintiff has been convicted of felony since the money was paid into court. Has it not now become the money of the Queen? His rights are forfeited to the Crown.] It is submitted not; besides the attorney might have a lien for his costs. The Phipson in support of the rule.- It is not shown here that the plaintiff's attorney has or claims any lien, and it must be taken, therefore, that none exists. rule of court must have a reasonable construction. In Hawkins' Pleas of the Crown it is said that after a conviction of felony all choses in action go to the Crown, with the exception of the rights, perhaps, in respect of personal injury. Here the plaintiff was convicted after the defendants had pleaded in the action. Cur. adv. vult. April 30.-POLLOCK, C.B. delivered judgment. Ex.] REG. v. JOHN DAUBENEY HIND. [C. CAS. R. Rule discharged with costs. CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. Saturday, April 28. POLLOCK, C.B., CHANNELL, B., BYLES, REG. v. JOHN DAUBENEY HIND. The rule laid down in Mead's case, 2 Barn. & Cres. 608, "that evidence of this description is only admissible where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration," recognised and adopted. Case reserved by Keating, J. for the opinion of this court. John Daubeney Hind was tried before me at the last assizes for the county of Gloucester, and convicted upon an indictment charging him with feloniously and unlawfully using certain instruments upon the person of one Mary Woolford, deceased, with intent to procure the miscarriage of the said Mary Woolford. On the trial, a dying declaration of the said Mary Woolford was tendered in evidence on the part of the prosecution, and objected to on the part of the prisoner, upon the ground that the death of Mary Woolford was not the subject of the inquiry. This was an action originally brought by the plaintiff | suspect there has been fraud in the matter; and it is against the railway company to recover the value of much better to act upon the rule. certain goods alleged to be in certain packages delivered to the railway company; the company pleaded to the action. They pleaded, first, that they were not guilty, and they paid 10s. into court, with reference probably to the baskets or hampers that were supposed to contain goods. The real defence was, that the whole affair was an imposition, the object of the plaintiff being to (Before recover the value of goods which in fact were never sent. After the 10s. was paid into court, it appears that the plaintiff was indicted and found guilty of receiving goods knowing them to be stolen, and having | been convicted and sen'ence passed upon him, the attorney who conducted the cause, with or without the assent of the plaintiff (and it does not matter which), stayed the action; that is, he took the money out of court, and then an application was made by Mr. Phipson to plead puis darrien continuance the conviction of the plaintiff, whereupon, the plea being perfectly true, the defence arising after the commencement of the action being so pleaded, and being perfectly true, the plaintiff confessed the plea, and then applied for the costs of the cause up to the time of pleading the plea puis darrien continuance under the 22nd rule of the pleading rules, under the authority of the C. L. P. A. Mr. Phipson then moved for a rule to show cause why the action should not be stayed, and judgment had been signed, and he moved to set it aside and stay the proceedings. We are of opinion that the 22nd rule clearly contains this case in its expressions, and it is impossible for us to deal with it otherwise. I believe the judgment of all my learned brothers is to discharge Mr. Phipson's rule, the 22nd rule, is this: "A plea containing a defence arising after the commencement of the action may be pleaded together with the pleas and defences arising before the commencement of the action: provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs of the cause up to the time of pleading such first-mentioned plea." The course which the defendants have taken in this case seems to all of us to make this rule applicable. It may be possible, it is even probable, that there may be some foundation for the defence which was suggested on the part of the railway company. Perhaps there is not much injury done to a man who is now suffering punishment after a conviction for receiving goods knowing them to be stolen; there is not much injustice done to him in sup- Carrington for the prosecution.-The only question posing that it is possible that the demand on the part is, as to the admissibility of a dying declaration upon a of the plaintiff may have been a fraud upon the com- charge of using instruments upon the person of a pany; but if that were so, the course that the company woman, to procure a miscarriage. On the part of the should have taken would have been to persist in their prosecution it is submitted that such declarations are defence, and to show that the fact was so; instead of admissible in all cases where personal injury has been which they retire behind the plea, merely saying sustained. In Rex v. Hutchinson, 2 Barn. & Cres. that the man was convicted, and therefore the right 608, n., where the prisoner was indicted for administerof action, though the action itself does not go to ing savin to a pregnant woman with intent to procure the ground, the right of action does. If he has abortion, evidence of her dying declaration was rejected a title to claim from the company damages in (Bayley, J.), because the woman's death was not the respect of these goods supposed to have belonged subject of inquiry. In Rex v. Baker, 2 Moo. & Rob. to him, there is no doubt it belongs to the Crown. The 53, where the prisoner was indicted for the murder of company, instead of meeting the matter upon the A., by eating poisoned cake, Coltman, J., after consultmerits, get rid of the action by saying, "Well, now,ing Parke, B., admitted the dying declarations of you are a felon convict, and your interest in those goods has passed to the Crown, and you can no longer support the action." If the company will resort to that plea, puis darrien continuance, which is no doubt perfectly true, the plaintiff has a right to say "It is true, I cannot longer maintain it," but if you plead a plea which does not actually go to the merits, but merely says I cannot longer sustain it, there is no injustice in saying, if that be so you must pay the costs up to the time of pleading that plea. We therefore think Mr. Phipsor.'s rule must be discharged. I received the evidence, but reserved the question as to its admissibility, and respited the execution of the sentence until the Court of Criminal Appeal should pronounce its decision upon the point: (see R. v. Baker, 2 M. & Rob.) If the court should be of opinion that the evidence was not admissible, then the judgment is to be reversed, inasmuch as without the evidence of the dying declaration of Mary Woolford the prisoner could not have been convicted. If the court should think the evidence admissible, then the judgment is to stand. No counsel appeared for the prisoner. another party who also died in consequence of eating some of the cake, but whose death was not the subject of the indictment. McGregor's case in the Court of Session, Scotland, 16 State Trials, 29, was also cited. POLLOCK, C.B.-In this case we are all of opinion that the dying declaration of the woman was improperly received in evidence. The rule we are disposed to adhere to, is to be found laid down in Rex v. Mead, 2 Barn. & Cres. 608. There Abbott, C.J. said, "The general rule is that evidence of this description is only admissible where the death of the deceased is the subMARTIN, B.-I think it would be wrong if we de-ject of the charge, and the circumstances of the death part from the plain words of the rule because we may the subject of the dying declaration." Speaking for C. CAS. R.] REG. v. C. HALLIDAY-ATTORNEY-GENERAL v. CorpORATION OF THetford. myself, I must say that the reception of this kind of evidence is clearly an anomalous exception in the law of England, which I think ought not to be extended. Conviction quashed. REG. v. CHARLES HALLIDAY. Evidence-Husband and wife-Wife implicated but not charged-Admissibility of husband. The prisoner was indicted for obtaining money from the trustees of a savings bank, by falsely pretending that a document produced by the wife of D. had been filled up by D.'s authority; and in another count for conspiring with the wife of D. to cheat the bank. D.'s wife presented the document, which had been fraudulently filled up at the instance of the prisoner, and obtained the money, and afterwards eloped with the prisoner. D.'s evidence was necessary to show that he had given no authority, but it was objected to, on the ground that it implicated his wife: Held, that D.'s evidence was admissible, as the wife was not charged upon the indictment. Case reserved for the opinion of this court by Byles, J. The prisoner was indicted for obtaining from the trustees of the Swansea Savings Bank a sum of 60%., by falsely pretending that a certain document produced to the bank by Eliza Thomas, the wife of Daniel Thomas, had been filled up by the authority of D. Thomas, the depositor, and was a genuine document. There was a second count founded on another false pretence, by which the prisoner was alleged to have obtained by another document, produced by the said E. Thomas, a further sum of money. [V.C. W. evidence of the husband was admissible, his evidence V. C. WOOD'S COURT. Costs-Borough fund-Charging order. By a decree, made on the hearing of an information against a corporation, the defendants were ordered to pay the relator his costs of such information. An advowson belonging to the corporation had been sold, under the powers of the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, and the amount of the proceeds stood to the credit of the corporation at the Bank of England: a Held, that the relator was entitled to have a charging order for the amount of these costs upon this fund. In the year 1859 an information had been filed by relator against the corporation of Thetford, for the purpose of having the proper application of certain sums arising from the navigation funds and tolls of the borough, levied by the corporation in aid of the borough fund, and to pay off a mortgage-debt which had been secured upon certain properties belonging to the corporation. In November of that year a decree had been made, making certain declarations, and amongst other things ordering that the relator should be paid his costs of the information. A fund was now in the bank to the credit of the corporation, and in the names of four of the town council, arising from the sale of an advowson belonging to the corporation under the The evidence of D. Thomas, the depositor, was essen-provisions of the Municipal Corporation Act, 5 & 6 tial to the prosecution, in order to show that he had given no authority to fill up the document, or to withdraw the deposit. There was a third count for a conspiracy between the prisoner and E. Thomas to cheat the savings bank. It appeared that an authority to receive the money had been filled up by another witness at the instance of the prisoner; that E. Thomas, the wife of the depositor, had presented it and obtained the money; and that the prisoner had afterwards eloped with E. Thomas. On the apprehension of the prisoner a large sum of money was found in his possession. It was objected, on behalf of the prisoner, that, although the wife of D. Thomas was not included in the charge, yet he was not an admissible witness to prove her guilty of a conspiracy, nor even to prove the counts for false pretences: (see Reg. v. Gleed, 2 Russell on Crimes, 983.) I thought his evidence admissible on all the counts. In deference, however, of the high authority of Littledale and Taunton, JJ., I reserved the point and suggested that the counsel for the prosecution should consent to a verdict of acquittal on the last count. The counsel for the prisoner then objected that an acquittal on the last count was inconsistent with a verdict of guilty on the first count. The jury, however, found the prisoner guilty on the first count, and not guilty on the second and third counts. I reserved these questions:-First, whether the husband's evidence was properly received in proof of the first count; secondly, whether there is any necessary inconsistency in the finding on the first and third counts. The prisoner's sentence was deferred, but the prisoner remains in custody. No counsel appeared either on the part of the prosecution, or the prisoner. The judges retired to consider the case, and on their return into court, POLLOCK, C.B. said:-The question is, whether the [MAG. CAS.] Will. 4, c. 76. In April last the relator had obtained from this court an order nisi, charging the fund in court to the extent of a sum of 667. 10s. 6d., the amount of the relator's taxed costs. This was an application to have such order nisi made absolute. C. J. Shebbeare, for the relator, contended that, under the 2nd section of the 5 & 6 Will. 4, c. 76, he was entitled to have the fund so standing to the credit of the corporation charged with the amount of his costs, which had been so taxed in pursuance of the decree. Bevir, for the corporation, contra, urged that the remedy of the relator for his costs was by bill in equity against the corporation, and as the fund was standing in the names of the four town council as trustees for the navigation belonging to the corporation, and not specifically to the credit of the corporation in their corporate capacity, the 92nd section of the Municipal Corporation Act applied. The claim of the relator was not therefore "upon the real and personal estate of the body corporate by virtue of a proceeding in equity mentioned in that clause. He cited Reg. v. Bridgwater. 10 Ad. & Ell. 282; Reg. v. Mayor of Leeds, 4 Q. B. Rep. 790; Reg. v. Passmore, 10 Ad. & Ell. 281; Ex parte Corporation of Hythe, 4 Yo. & Coll. 55. as The VICE-CHANCELLOR said he could make the order absolute. The proceeds of the advowson sold by the corporation was clearly the property of that corporation. In his opinion the saving clause in the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, s. 92, R Q. B.] KNOX AND ANOTHER v. SHEPHERD-CHILCOTE v. YOULDON. [Q. B. was intended to reserve any rights which could have | Aug. 1859 defendant gave notice to withdraw the attached against the real or personal estate of the cor- shares held in the society by his late father. The sum poration by virtue of any proceedings at law or in sought to be recovered was for subscriptions and fines equity. The trust created by the Act would, as to the due between the death of the deceased member and the borough fund, prevent any such application but for notice of withdrawal. By the 22nd rule of the society such saving clause. It had been contended that the it was provided, that "in case of any dispute between proper construction of this clause required the relator any members of the society, or the trustees or the board to file his bill in equity against the corporation in their thereof, such dispute shall be referred to arbitration, corporate capacity, but he could not assent to this pursuant to 10 Geo. 4, c. 56, s. 27." The County narrow construction of the clause. For the purposes to Court judge had given judgment for the plaintiffs. It which, according to that construction, the clause was alone was now contended that this was not a dispute beintended to be applied, no saving clause would have tween the members of the society; the defendant is been necessary. The Legislature could not have in- not sued as a member. The 6 & 7 Will. 4, c. 32, s. 4, tended that no claims which would have been lawful incorporates the 10 Geo. 4, c. 56, and applies the probefore the passing of the Act, and would have pre-visions of Friendly Society Acts to building societies; vented the property being handed over and added to and 10 Geo. 4, c. 56, s. 27, provides that rules shall the borough fund, should be saved by this clause unless be made directing how disputes shall be settled. This enforced by a suit in equity for that purpose. The society had made a rule, No. 22, that "in case of any decree having declared that the relator was entitled to dispute between any members of the society, or the the costs of the information, the property of the corpo-trustees or the board thereof, such dispute shall be ration was immediately attachable upon the amount of referred to arbitration, pursuant to 10 Geo. 4, c. 56, such costs being ascertained, and it was liable to satisfy s. 27." A particular tribunal is thereby established, such a demand. Here there had been a suit against no doubt; but this is not such a dispute as the rule refers the corporation in which they had appeared to defend | their corporate rights. This case, therefore, was exactly within the saving clause, and the relator was entitled to have his claim for costs satisfied out of this fund, before it was added to the borough fund for the general purposes of such fund. Charging order made absolute. COURT OF QUEEN'S BENCH. to. Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. persons claiming under them?] Saturday, May 5. KNOX AND ANOTHER v. SHEPHERD. Building society-Administrator of deceased member Liability for fines-Prohibition. A building society's rules provided for the settlement of disputes by arbitration. After the death of a member of the society, certain fines and subscriptions became due, for which the trustees sued his administrator in the County Court. Held, that the administrator was a member of the society, and had been so treated by them, and this court made absolute a rule for a prohibition to the County Court to restrain proceedings, that the dispute might be settled by arbitration under the rules. Hayes, Serjt. showed cause against a rule for a probibition directed to the County Court judge of Clerkenwell to restrain him from proceeding further in this case. It appeared that the plaintiffs were trustees of the North London Benefit Building Society, and in that capacity had issued a plaint against the defendant as administrator of his father, a deceased member of the society. The 14th rule of the society provided that, "in case of the death of any member, his executors or administrators shall be entitled to his share or shares, and may vote and act in all cases whatever as fully as the deceased member, whom they represent, might have done if living." The deceased T. Shepherd was an original member of the society, and holder of two shares; he died in Jan. 1855, and some time after the defendant called at the office of the society and produced letters of administration granted to himself, and the deceased's club-book, showing his payments to the society, in support of his title as administrator under the above rule, and from thenceforth be acted and was treated by the society as the legal representative of the deceased. At the death of the father there was nothing due from him to the society in respect of his subscription or fines; his payments covered his liability and left a few shillings over. Defendant had received no money from the society, but be might have done so had he pleased. On the 8th Here the defendant is sued as administrator for certain liabilities of a deceased member, and he denies that he is a member; the father of the defendant was an original member of the society, and was liable to pay contributions. There is a rule that the administrator may take the shares of a deceased party; and the claim is for subscriptions and fines due, and credit has been given for sums received. [COCKBURN, C.J.Must not the rule be held to embrace members and The 18 & 19 Vict. c. 63, does not treat of these societies; it does not repeal the 6 & 7 Will. 4, c. 32. The mere repeal of the 10 Geo. 4, c. 56, by 18 & 19 Vict. does not take that statute out of the 6 & 7 Wiil. 4, into which it was incorporated: (Cutbill v. Kingdom, 494.) If there is no rule made under the Act which is applicable to the case, the common law jurisdiction is not taken away. [BLACKBURN, J.-This is not quite the case of a man claiming under a member.] Kelsall v. Tyler and others, 25 L. J. 153, Ex.; Reg. v. Trafford, 26 L. J. 95, Q. B. were cited.] Collier, Q. C. (Hance with him).-The trustees of the society have treated the defendant as a member, and he has so acted. The defendant claimed to withdraw; these payments had accrued due since the deceased's death. COCKBURN, C. J.-The society have adopted the J. Hughes, plaintiff's attorney. May 26 and 30. CHILCOTE (appellant) v. YOULDON (respondent). Commons Inclosure Acts-8 & 9 Vict. c. 118-15 f 16 Vict. c. 79, s. 13-1 & 2 Vict. c. 71-Ancient inclosures Rights of parties interested in— When such rights not barred. Land which has been inclosed by a party more than twenty years before the day of the first meeting for the examination of claims under an inclosure award is not liable to be dealt with by such award without the consent of the party interested; and the rights of such party are not affected by the fact of such in Q. B.] CHILCOTE v. YOULDON. [Q. B. First, that the acts of the valuer were conclusive, and could not be questioned before the justices. closed land being included in the map and the award | opinion of the Court of Q. B. thereon on the grounds of the commissioners, and by his not having taken following:any steps upon the subject. Where, therefore, such land was so included in the map and award, and the party interested took no steps upon the subject, but refused to give up possession, and the valuer applied to justices for a warrant of possession, and the justices refused to grant such warrant upon the ground that the land in question was "ancient inclosure," and was not subject to be inclosed without consent: Secondly, that the said encroachment being included in the map annexed to the provisional order for inclosure by the commissioners, was thereby conclusively "deemed to be parcel of the land subject to be inclosed" within the meaning of the 13th section of the 15 & 16 Vict. c. 79. Thirdly, that such provisional order being conclusive as to what land should be deemed to be subject to be inclosed, it was beyond the jurisdiction of the justices to hear any evidence as to the fact of its being an ancient inclosure, or any evidence in relation to such encroachment other than was required to prove the allegations contained in the said complaint. Fourthly, that as the encroachinent in question was included in the map annexed to the provisional order, the respondent was bound to have delivered a claim in writing to the valuer for any "right or interest he may have had or claimed in any land proposed to be inclosed" under sect. 47 of the 8 & 9 Vict. c. 118, or to have appealed against the decision of the valuer (appellant) in respect of such claims as were delivered to, determined on and allowed by the valuer under the 84th section of the last-named Act. Fifthly, that the fences of the said piece of land having been kept in an imperfect condition during the twenty years next preceding the first examination of claims, and the said piece of ground having been occupied during the last-mentioned term by different persons not claiming directly from each other or setting up any special title thereto, the said piece of ground was not, therefore, an ancient inclosure within the meaning of sects. 52 and 86 of the 8 & 9 Vict. c. 118, but an "encroachment" within the meaning of sect. 50 of the said Act." "At an adjourned petty sessions of her Majesty's justices of the peace, held in and for the division of Paignton, in the county of Devon, on the 19th Jan. 1860, a complaint in writing was made under the provisions of the 8 & 9 Vict. c. 118, and the 15 & 16 Vict. c. 79, s. 13, by the appellant, the valuer appointed and acting in the matter of the inclosure of the commons and waste lands in the manor of Brixham, situate in the parish of Brixham, in the county of Devon, against the respondent, an occupier holding over and detaining a portion of land used as garden ground, and alleged to be within the limits of the said common. On the part of the appellant, evidence was given of his appointment as valuer, and that the piece of ground occupied and held over by the respondent was originally an encroachment on the said commons, and included in the map of the commons annexed to the provisional order for the said inclosure, under the seal of the Inclosure Commissioners; that no claim in respect thereof, or in reference thereto, was made by the respondent before or delivered to the appellant as such valuer or otherwise, at the several times or places by him appointed and notified for such By sect. 25 of the 8 & 9 Vict. c. 118 (the Commons purpose; that the valuer had duly allowed the Inclosure Act), upon application to the commissioners, majority of the claims that were so made by other they may direct an assistant commissioner to inquire parties, and that the land occupied by the respondent into the expediency of the proposed inclosure, who by was included and allowed in such claims; and it was sect. 26 is to report upon the expediency, &c. of the thereupon argued, on behalf of the said appellant, that proposed inclosure, whereupon by sect. 27 the comthe land so occupied and held over was an encroach-missioners may make a provisional order for the inment which, by being included in the provisional order, must thereby be "deemed to be parcel of the land subject to be inclosed," and therefore such as he was empowered to recover under the provisions of the 15 & 16 Vict. c. 79, s. 13. On the part of the respondent, the above facts were not disputed, but it was proved in addition thereto, that the said piece of ground had been inclosed for more than twenty years next preceding the day of the first meeting for the examination of claims, but that the fences thereof were during portions of such time in an imperfect condition, and that it had been so occupied by different persons not claiming directly from each other, or setting up any special title thereto; and it was therefore urged that the said inclosure was an ancient inclosure under the provisions of the 8 & 9 Vict. c. 118, s. 52, and therefore such as by sect. 86 of the last-named Act, the valuer was not empowered to order to be inclosed without the consent in writing of the person interested therein, which said consent had not been given. We the said justices thereupon considered that the fact so proved before us, that the inclosure was an ancient one, was a sufficient answer to the complaint, and that it was not necessary that any claim thereto should have been set up before the valuer, but might be pleaded notwithstanding as a justification for so holding over, and that the respondent could not be dispossessed of the said piece of ground without his consent in writing first had and obtained. And we dismissed the said complaint. The appellant therefore applied to us the said justices to state a case for the closure of the land. By sect. 33 a valuer is to be appointed to divide, set out and allot such land. Sect. 34 provides for the duties, &c. of the valuer. By sect. 47 any person claiming any common or other right or interest in any land proposed to be inclosed is to deliver such claim in writing to the valuer stating the particulars, and by sect. 48 such claim is to be heard by the valuer, who may allow or disallow the same, &c., and he is to make an order thereupon, which is to be final, unless the party dissatisfied shall give notice of his desire to have his claim determined by the commissioner or an assistant commissioner. By sect. 50 it is enacted that all encroachments and inclosures other than inclosures duly authorised by the custom of the manor which shall have been made by any person from or upon any part of the land proposed to be inclosed within twenty years next before the first meeting for the examination of claims shall be deemed parcel of the land subject to be inclosed, and shall be divided, allotted and inclosed accordingly. By sect. 52 it is enacted "that all lands which shall have been inclosed from any land subject to be inclosed under this Act for more than twenty years next preceding the day of the first meeting for the examination of claims in the matter of such inclosure, shall, for the purposes of this Act, be deemed and taken to be ancient inclosures, but not so as to carry any right of common," &c. By sect. 55 the valuer is to make a schedule of all claims and objections for public inspection, and there is provision for the rehearing of the claimants, and after that the rights of the |