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Attorneys to be admitted, Trinity Term, 1840.- Superior Courts : Queen's Bench. 505
Clerks' Name and Residence.

To whom articled and assigned.
Homes, William, the younger, 5, Salisbury William Homes, Pool End, near Ledbury; as.

Street, Strand; and Ledbury, Herefordshire. signed to Thomas Jones, Ledbury.
Hazell, Edward Wells, 19, King Street, Hol. George Parsons Hester, Oxford.

born; and Oxford. Hitchcock, Williain, 25, Claremont Terrace, Charles Hyde, Ely Place.

Pentonville. Holland, Thomas Moore Woollams, Upton. Thomas Bird, Upton-upon-Severn ; assigned

upon-Severn; and 7, Harpur Street, Red to Thoinas Loftus, New Inn.

Lion Square. Harrison,'George, 29, Mount Street, White George Harrison, Bishop's Wearmouth ; aschapel ; Bishop Wearmouth, Durham; and

signed to Joseph John Wright, Sunderland. Colet Place, Commercial Road. Jones, Daniel Price, 34, Penton Place, Pen- Daniel Price, Talley, Carmarthenshire.

tonville; 33, Arundel Street, Newcastle Emlyn; 24, Upper Park Street, Islington;

and 7, Upper Wharton Street, Lloyd Square. Johnston, George, 18, Hunter Street, Bruns. Joseph Heapy Watson, 19, King's Arm's Yard.

wick Square. Johnson, William Herry, 21, Gower Place, William Brackenridge, 16, Bartlett's BuildEuston Square.

Jenkins, George Thomas, 24, Nottingham Thomas William Budd, Bedford Row.

Place, Marylebone.
Ilderton, Henry Decinius, 6, Grove Terrace, George Leeke Baker, Lincoln's Inn Fields.

St. John's Wood; Mortimer Street; and

Margaret Street, Cavendish Square. Jones, Thomas, Shrewsbury.

Henry Jones, Shrewsbury. Inglis, James, Colchester.

William Mason, Colchester. Kemp, George Baring, Naples ; 35, Clarendon Joseph Maynard, Mansion House Place ; Street, Somer's Town; and Brighton. signed to Frederick Lewis Austen, 6, Ely



[To be continued.]


A case was submitted to the Court to raise the question of the plaintiff's liability, and that case

stated the acts under which this navigation was Queen's Bench.

made, and set forth the finding of the coinmis[Before the Four Judges.]

sioners that the plaintiff's should pay a certain

sum, amounting to a thirty year's purchase, to CANAL.-POOR.

the owners of land taken for the purposes of Where certain proprietors of a navigation the navigation under the compulsory powers

took possession of land under the provisions of the acts.
of a private act of parliament, and cut

The Attorney General for the plaintiffs.-
and dug it, and made cuts, locks, and tow. The right of the plaintiffs to the navigation
ing paths ; and commissioners appointed entirely depends on the 10 Anne, c. 8,a and the
under the act had awarded to the owners 47 Geo. 3; by the first of which the right to
of the land a sum amounting to thirty make the navigation, and to take tolls, was
year's purchase in satisfaction of such tak-
ing, but there was no regular conveyance of
the lund to the canal proprietors : Held, sons, therein mentioned, were appointed com-

a By s. 2 of the 10 Anne, c. 8, certain perthat these circumstances constituted them missioners for settling any difference that occupiers of the land, and as such liable to might arise between the undertakers, &c. and be rated to the relief of the poor.

the proprietors of the said lands, tenements or This was an action of replevin. The decla- hereditaments; and they were thereby, einration stated that the defendants were the pas powered to settle and determine what satisfacrochial officers of Hanbain Mills; and that the tion every such person should have for such plaintiffs were the present proprietors of the proportion of his lands, &c. as should be cut, navigation from Bath to that place, under an digged, removed or made use of as aforesaid, act entitled “An Act to make navigable the and for the damage that should be thereby river Avon from Bath to Hanham Mills,” that sustained ; and to adjust and settle what share the defendants had unlawfully seized the goods and proportion of such purchase money or saof the plaintiff's, &c. The defendants pleaded tisfaction every tenant or other person having that the plaintiff's were the occupiers of certain a particular estate, term or interest in any of towing-paths, locks, and cuts &c., and that the premises, should bave for his respective they had been rated as such occupiers, &c. interest or right.


Superior Courts : Qucen's Bench.

conferred; and by the second the right to be supported, the action of replevin is well take land for towing-paths, &c. was created. brought, and the plaintiffs must have judg. There are no provisions in the local act res- inent. pecting rateability. That is left entirely to the Mr. Graces, contra.- In this case it has been 43 Eliz. It does not seem that the plaintiffs expressly found that the plaintiffs are the procan be liable to be rated in respect of their prietors of the locks and the towing-paths, locks, but if they are, then they are not liable | They have paid a sum in satisfaction for them in respect of their towing-paths, for they are to the owners of the soil. It is clear then that not the owners of the soil, but have merely an on the authority of The King v, The Mersey easement over it. The plaintiff's here are at all and Irwell Navigation, they are liable to be events not exclusive occupiers, which, in the rated in respect of that property. The act cases of The King v. Jollife, b and The king here gives the proprietors a right to purchase v. Bell, was deemed necessary in order to lands. They have purchased" lands, and it create the liability: To a certain extent the might have been expected that after the case plaintiffs as proprietors of this very navigation, of The Ring v. Thomas, no dispute would ever were held in The King v. Thomas, d (where the have been raised respecting the liability of the substance of these local acts is set out) not to proprietors to be rated for the locks and towbe liable to be rated in respect of the landing-paths. It is absurd to say that the procovered with water, being part of the River prietors have a mere easement. Is a right to Avon, because they were occupiers; but in make a canal through another man's land a respect of the cut and the locks, they were inere easement ? The right of passing over held to be occupiers, and therefore rateable. the land may be so, but the right to dig it, to But at that time it was taken for granted that cut it up, and to lay it under water, must be the soil of the cuts was in the proprietors of more. In The King v. The Chelsea Water the company. That, however, is a mistake. Works,k it was expressly held that the proThey have no conveyance of the soil, but they prietors of the water works, who, by royal pay a compensation for a licence to use it, the perinission, had been allowed to make a resersoil itself remaining in the foriker owners. It voir in St. James's Park, and to lay down pipes, having been determinede that the proprietors &c. were rateable as occupiers in respect of such are not liable, but in respect of occupation reservoir, and also in respect of the land below only, though they may have in some respects the surface, where they laid down pipes, though an exclusive right of passing over the soil; and another person was rated for the herbage. The the fact being now apparent that the proprie- occupation was similar in The King 5. Bell, tors of this navigation are not the proprietors and therefore, without disputing that occupaof the soil, but have a mere easement over it, tion is necessary to rating, it may be contended then all the distinction between the cuts and that such occupation exists here. The protowing-paths and the river is gone. The cases prietors here received their first powers froin already cited, shew that the proprietors of the 9 Anne. That act gave them power to purthe navigation cannot be considersil as pro- chase lands. The 47 Geo. 3, which afterwards prietors of the soil. They have but an ease- passed, recited that they had purchased lands, inent over a public lighway; for the bed of the and made works, but that they had not power river, and the towing-path by the side of the under the former act, to make towing-paths. river, are public highways. All the King's It therefore gave thein that power. That subjects have a right to use it; The King v. shews that the legislature itself treated then The Severn and Wye Company. As to the as occupiers. In The king v. The Mayor of towing-path, it is clear that the rate cannot be London,m a barge-way and toll-gate had been maintained in respect of that; for though the purchased by the corporation of London ander plaintiffs may have in some respects an exclu- an act similar to the present, and a rate on the sive right over it, yet it is not a property corporation, on the ground of liability by ocwithin their occupation; nor is the soil of it cupation, was there held valid. It is clear, in them. The king v. Jolliffe,5 is expressly therefore, that in respect of the cut and locks in point here,h The King v. Belli is not an there is a sufficient liability to rate, and that authority the other way, for there the parties the defendant have such a vested interest in had so conducted themselves as to convert the the towing-paths, as to make them rateable grant made to them of a way-leave into a real for such paths. And The King v. The Chelsea and exclusive occupation, and they were rated Water Works shews that they are liable in in respect of their occupation. The right of respect of the pipes underground. The questhe defendants liere to levy the rate cannottion of occupation did not arise in The King

v. The Severn and Rye Railway Company,

which turned altogether on the company asb 2 Term Rep. 90. c 5 Maule & S. 221. suming a public duty, and afterwards atteinptd 9 Barn. & C. 114.

ing to claim the privilege of laying it down at e The king v. T'he Mersey and Irwell Navio pleasure. The shares in this company bave gation, 9 Barn. & Cres. 95, The King v. The already been decided to be real estate, and Aire and Calder Navigation, ih. 820.

the proprietors are rateable in respect of the 1 2 Barn. & Adol. 616. 6 2 Terin Rep. 90.

Iso The King v. The Trent and j 9 Barn. & C. 95. kö Barn, & Ad. 156. Mersey Nurigation, 4 Barn. & C, 57.

15 Maule & S. 221. m 4 Terw Rep. 21. i 7 Term Rep. 598,

n Buckeridge v, Ingram, 2 Ves. jun. 652

b See


Superior Courts : Queen's Bench; Queen's Bench Practice Court ; Common Pleas. 507 land of which they have become owners or Queen's Bench Practice Court. occupiers under the two acts.

HIGHWAY-YON-REPAIR. -ADJOURNING The Attorney General replied.

Lord Denman, C. J.—This case has been argued with a great provision of learning ; but

Where a rule has been obtained for imposing the question simply iurns on the terms of the

a fine on a parish for non-repair of a highact of parliainent, and on what has been done uray, the Court will enlarge it, is the state under it by the company. Are the proprietors

of the season is such as to render it incon: of the company occupiers under this act? I

renient to proceed with the repairs of the have not a doubt that they are, and that they

highway. are ratealile in respect of being so. Suppose

Hoggins shewed cause against a rule obthese persons had chosen to trespass on the tained by). S. Wortley, for imposing a fine lands of another, and had held possession of on the township for non-repair of a road. The those lands, and that an action had been brought aftidavit on which the application was founded, and the jury had given the full value of the stated, that since November only about 701. land. If the trespassers had continued in pos- bad been expended in repairs. The defendants session, the owner of the land might not have had been found guilty on an indictment against conveyed, but when the parish had come to thein at the January Sessions, 1839; and in these permanent trespassers and asked for a

Michaelmas terın following a rule nisi was obrate in respect of their occupation, they ought tained to impose a fine on them. When the not to be allowed to turn round and say that rule came on to be argued, it was agreed it they were not the owners of the land, and so should be enlarged, so that the defendants were not liable to be rated. As between them- night make the requisite repairs. Hoggins selves and the parties dispossessed they might now.contended that at this season, and espenot be owners nor occupiers, but as between cially in the present year, the Court would themselves and the parish they would certainly enlarge the rule. It was not possible to make hold that character. What would it signify to the necessary repairs until the spring season the parish whether they owned the land under a

was further advanced. This was the uniform regular conveyance or not? But that is a much practice at sessions. weaker case than the present. The act of Anne

Wortley submitted that the public convesays that the company may take and occupy

nience rendered it necessary for the rule to be lands, and speaks of the purchase money for made absolute without delay. the lands, and that the commissioners are to

Patteson, J.-At this time of the year it is give satisfaction to the owners whose lands, &c. not an unreasonable thing to ask for an enare cut, digged, removed or made use of as largement of the rule ; and it seems to me it aforesaid, and for the damage that should be may, without inconvenience, be enlarged till thereby sustained. Now here, in this case there next term. has been an inquisition, by which it appears

Rule enlarged.- Regina v. The Inhabitants

Q. B. P. C. that the jury gave thirty years' purchase to the of Walton, H. T. 1840. lord of the fee under this provision of the act for lands taken by the plaintiffs. There can

Common pleas. therefore be no doubt that that was given in PARTICULARS. AMENDMENT.-EXECUTION. satisfaction of the taking of the land, and that these canal proprietors are the occupiers of

Where two actions were brought against the land thus taken. I need not go nore executors, the former against them as exparticularly into the case, so far as it relates to ecutors, and the latter in their own right, the towing-paths, as there seems no doubt that the pluintiff was allowed to amend his parthey consist of land now belonging to the pro- ticulars in the former by adding items prietors of this company, and taken by them sought to be recovered in the latter. from the unwilling owners of the soil under the E. V. IVilliams shewed cause against a rule compulsory clauses of the act of parliament. nisi obtained by Wilde, Serjeant, for dischargBut, with respect to the towing-paths, I must ing an order of Lord Denman, C. J., to amend say that I do not think that the reservation of the plaintiff's particulars. It appeared from the right of other persons of the King's subjects the affidavits that the plaintiff was a stoneto come upon them for the purpose of rating, mason, and had been employed by the testator prevents the canal proprietors from being the to erect a inansion. It was began in 1828, occupiers of the land thus employed. On the and completed in September 1831, Wilkins, whole, I ain of opinion that the verdict inust the testator, having died in May 1831. The be for the defendant.

writ, which was in assumpsit, was sued out in Mr. Justice Littledale.--I think it quite clear 1835, and another action was brought against that these plaintiffs must be considered under the present defendants, in their individual cathe words of this act as the occupiers of the cut pacity, to recover for that portion of the work and towing-paths, and that consequently the which had been done since the testator's rule on them as such was properly inade. death; it being proved that alterations were

Mr. Justice Williams and Mr. Justice Cole- made in the building since that time. Both ridge concurred.

actions were referred, and the heir of the testaJudgment for the defendant.—Bruce and the tor was made a party to the reference. The arbiButh River Company v. The Churchrcardens of trator by his award, directed the second action Hanham Mills, H. T, 1810, Q. B, F. J, to be discontinned, and that the verdict in the



Superior Courts : Common Pleas.


first action should stand in favour of the plain- with a view of defeating the Statute of Limitiff for 295l. This award was afterwards set tations. The heir may still be sued for that aside by the Court. Notice of trial having part which was for his benefit, and his ability been given, the order in question was made will be a defence to all that the plaintiff does by the Lord Chief Justice to allow the plaintiff not prove to have been done before the death to amend his particulars, by inserting some of of the testator. the items which had been charged against the Maule, J.-The plaintiff stopped the operadefendants in the second action, and which tion of the statute by suing out his writ; but the plaintiff expected to be able to prove to his demand was limited by his particulars, have been done in the lifetime of the testator. which he may from tiine to time amend, while

E.V. Williams shewed cause, and contended good grounds are shewn for amendment. It that the order in question met the justice of is the declaration that operates on the statute, the case, and was no hardship on the defen- not the particulars. I think Lord Denman dants. The plaintiff only sought not to be exercised a very sound discretion in making prevented from recovering for what was done the order for the amendment. prior to the testator's death. It is said that Rule discharged with costs.-Jones v. Corrie the amendment would deprive the defendants and another, executors of Wilkins, H. T. 1840. of the benefit of the Statute of Limitations. C. P.

Maule, J., referred to Staples v. Holdsworth.b

E. V. Williars.-If the plaintiff is entitled to make these charges at all against the de. ATTORNEY'S BILL.--PAYMENT INTO COURT. fendants, he has commenced his action in lime, and ought not to be barred by the statute; but the amendinent was not applied for An attorney brought an action for his costs, with any view to save the statute.

and a certain sum wou8 paid into Court. Kelly and Porcell, in support of the rule. The causc wus referred, and it wus agreed No reason is given for the plaintiff's delay; that the claim of the plaintiff should be there is a plea of payment, and this is an ac- limited to a certain day; he was found to be tion against executors. Another action, too, overpaid to that day. The Court refused in this case has been brought for the same to disturb the award. demand as that sought to be included. The

This was an action of assumpsit for the plaintiff ought not to be in a beiter situation balance of an attorney's bill, to wbich there was than if he brought a fresh action. The heir is a plea of payment of 211. 158. into Court. The the party really liable.

defence was, that there was no authority on Tindul, C. J.-I think this rule should be the part of the defendant for the business done discharged. In the first place we should not, beyond that amount. The defendant gave without very strong grounds, or proof of ma-evidence on the trial to shew that he revoked nifest mistake, set aside the order of a Judge the authority given by him to the plaintiff, and made when all the facts were before him. the bill was subsequently referred for lasation. Then, as to the circumstances of this particular It appeared that the defendant was present at case, it appears that the plaintiff brings his the plaintiff's office on the 23d August, and action at a time when the Statute of Limita. he then consented that the bill should be taxed tions would not operate against him, and at down to that day. On the taxation, the master a certain period he delivers liis particulars. found that the sum paid into Court exceeded Those particulars are for work done in build- what was due to the plaintiff for business done ing the house; but he, by mistake, omits items down to that day by 21. or 31., and a verdict for work which he now thinks he shall be was consequently entered for the defendant. able to prove were done in the lifetime of the

Crowder applied for a rule to ainend the rule testator. No difficulty is cast upon the defen- for taxation, by altering the day down to which dants; if they are not liable, the new items the bill was to be taxed. The reason why that will not affect them.

day was fixed on was, that the plaintiff could Bosanguet

, J.-I am of the same opinion. clearly prove that the authority given to the The plaintiff seeks to recover for all the work, plaintiff existed down to that day. The defenpart being done in the lifetime of the testator, dant being once liable, the burden of shewing and part since his death ; and he, therefore, in the authority to have been revoked clearly laid the first instance brings two actions. It turns out, on further investigation, that a smaller

Bosanquet, J.-I think no rule should be portion than be at first supposed has been granted. Though it turns out that a day was done since the death. With reference to the fixed which was to the disadvantage of the Statute of Limitations, it may be observed plaintiff, yet he was bound by his assent. that the plaintiff seeks to introduce the latter Coltman, J.-This is in effect an application portion of the work.

to set aside the verdict, because evidence is disErskine, J.-This is no fresh cause of ac. covered which might, if presented at the trial, tion. The plaintiff only seeks to recover have led to a different result. Such an applithe whole of what was done before the death cation can only be made on payn’ent of costs, of the testator. The amendment is not sought and is not grantable at all when the matter in

dispute only amounts to 21. or 31. a See 5 B. N. C. 188; 7 Scott, 106.

Maule, J., concurred. h 6 D. P. C. 715.

Brigg's v. Glover, H. T. 1810. C. P.

upon hiin.

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