Attorneys to be admitted, Trinity Term, 1840.-Superior Courts: Queen's Bench, 505 Clerks' Name and Residence. Hitchcock, William, 25, Claremont Terrace, Holland, Thomas Moore Woollams, Upton- Harrison, George, 29, Mount Street, White. Johnson, William Herry, 21, Gower Place, Jenkins, George Thomas, 24, Nottinghain Ilderton, Henry Decinius, 6, Grove Terrace, Kemp, George Baring, Naples; 35, Clarendon To whom articled and assigned. Charles Hyde, Ely Place. Thomas Bird, Upton-upon-Severn; assigned to Thomas Loftus, New Inn. George Harrison, Bishop's Wearmouth; assigned to Joseph John Wright, Sunderland. Daniel Price, Talley, Carmarthenshire. Joseph Heapy Watson, 19, King's Arm's Yard. George Leeke Baker, Lincoln's Inu Fields. Henry Jones, Shrewsbury. [To be continued.] SUPERIOR COURTS. Queen's Bench. CANAL.-POOR. Where certain proprietors of a navigation took possession of land under the provisions of a private act of parliament, and cut and dug it, and made cuts, locks, and tow. ing paths; and commissioners appointed under the act had awarded to the owners of the land a sum amounting to thirty year's purchase in satisfaction of such taking, but there was no regular conveyance of the land to the canal proprietors: Held, that these circumstances constituted them occupiers of the land, and as such liable to be rated to the relief of the poor. This was an action of replevin. The declaration stated that the defendants were the parochial officers of Hanham Mills; and that the plaintiffs were the present proprietors of the navigation from Bath to that place, under an act entitled "An Act to make navigable the river Avon from Bath to Hanham Mills," that the defendants had unlawfully seized the goods of the plaintiffs, &c. The defendants pleaded that the plaintiff's were the occupiers of certain towing-paths, locks, and cuts &c., and that they had been rated as such occupiers, &c. a By s. 2 of the 10 Anne, c. 8, certain persons, therein mentioned, were appointed commissioners for settling any difference that might arise between the undertakers, &c. and the proprietors of the said lands, tenements or hereditaments; and they were thereby empowered to settle and determine what satisfaction every such person should have for such proportion of his lands, &c. as should be cut, digged, removed or made use of as aforesaid, and for the damage that should be thereby sustained; and to adjust and settle what share and proportion of such purchase money or satisfaction every tenant or other person having a particular estate, term or interest in any of the premises, should have for his respective interest or right. 506 Superior Courts: Queen's Bench. be supported-the action of replevin is well brought, and the plaintiffs must have judgment. conferred; and by the second the right to take land for towing-paths, &c. was created. There are no provisions in the local act respecting rateability. That is left entirely to the Mr. Graves, contrà.—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 plaintiffs 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. Jolliffe, 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 King 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 land ing-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 mere 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 permission, had been allowed to make a resersoil itself remaining in the former 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 v. Belly tors of this navigation are not the proprietors and therefore, without disputing that occupa of 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 from already cited, shew that the proprietors of the 9 Anne. That act gave them power to purthe navigation cannot be considersd 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 highway; for the bed of the river, and the towing-path by the side of the river, are public highways. All the King's subjects have a right to use it; The King v. The Severn and Wye Company. As to the towing-path, it is clear that the rate cannot be maintained in respect of that; for though the plaintiffs may have in some respects an exclusive right over it, yet it is not a property within their occupation; nor is the soil of it in them. The King v. Jolliffe, is expressly in point here. The King v. Bell,i is not an authority the other way, for there the parties had so conducted themselves as to convert the grant made to them of a way-leave into a real and exclusive occupation, and they were rated in respect of their occupation. The right of the defendants here to levy the rate cannot That and made works, but that they had not power Superior Courts: Queen's Bench; Queen's Bench Practice Court; Common Pleas. 507 land of which they have become owners or occupiers under the two acts. The Attorney General replied. Lord Denman, C. J.-This case has been argued with a great provision of learning; but the question simply turns on the terms of the act of parliament, and on what has been done under it by the company. Are the proprietors of the company occupiers under this act? I have not a doubt that they are, and that they are rateable in respect of being so. Suppose these persons had chosen to trespass on the lands of another, and had held possession of those lands, and that an action had been brought and the jury had given the full value of the land. If the trespassers had continued in possession, the owner of the land might not have conveyed, but when the parish had come to these permanent trespassers and asked for a rate in respect of their occupation, they ought not to be allowed to turn round and say that they were not the owners of the land, and so were not liable to be rated. As between themselves and the parties dispossessed they might not be owners nor occupiers, but as between themselves and the parish they would certainly hold that character. What would it signify to the parish whether they owned the land under a regular conveyance or not? But that is a much weaker case than the present. The act of Anne says that the company may take and occupy lands, and speaks of the purchase money for the lands, and that the commissioners are to give satisfaction to the owners whose lands, &c. are cut, digged, removed or made use of as aforesaid, and for the damage that should be thereby sustained. Now here, in this case there has been an inquisition, by which it appears that the jury gave thirty years' purchase to the lord of the fee under this provision of the act for lands taken by the plaintiffs. There can therefore be no doubt that that was given in satisfaction of the taking of the land, and that these canal proprietors are the occupiers of the land thus taken. I need not go more particularly into the case, so far as it relates to the towing-paths, as there seems no doubt that they consist of land now belonging to the proprietors of this company, and taken by them from the unwilling owners of the soil under the compulsory clauses of the act of parliament. | But, with respect to the towing-paths, I must say that I do not think that the reservation of the right of other persons of the King's subjects to come upon them for the purpose of rating, prevents the canal proprietors from being the occupiers of the land thus employed. On the whole, I am of opinion that the verdict must be for the defendant. Queen's Bench Practice Court. HIGHWAY.NON-REPAIR.-ADJOURNING Where a rule has been obtained for imposing Hoggins shewed cause against a rule obtained by J. S. Wortley, for imposing a fine on the township for non-repair of a road. The affidavit on which the application was founded, stated, that since November only about 701. had been expended in repairs. The defendants had been found guilty on an indictment against them at the January Sessions, 1839; and in Michaelmas term following a rule nisi was obtained to impose a fine on them. When the rule came on to be argued, it was agreed it should be enlarged, so that the defendants might make the requisite repairs. Hoggins now contended that at this season, and especially in the present year, the Court would enlarge the rule. It was not possible to make the necessary repairs until the spring season was further advanced. This was the uniform practice at sessions. Wortley submitted that the public convenience rendered it necessary for the rule to be made absolute without delay. Patteson, J.-At this time of the year it is not an unreasonable thing to ask for an enlargement of the rule; and it seems to me it may, without inconvenience, be enlarged till next term. Rule enlarged.-Regina v. The Inhabitants of Walton, H. T. 1840. Q. B. P. C. Common Pleas. PARTICULARS. AMENDMENT.-EXECUTION. -HEIR. Where two actions were brought against executors, the former against them as executors, and the latter in their own right, the plaintiff was allowed to amend his particulars in the former by adding items sought to be recovered in the latter. E. V. Williams shewed cause against a rule nisi obtained by Wilde, Serjeant, for discharging an order of Lord Denman, C. J., to amend the plaintiff's particulars. It appeared from the affidavits that the plaintiff was a stonemason, and had been employed by the testator to erect a mansion. It was began in 1828, and completed in September 1831, Wilkins, the testator, having died in May 1831. The writ, which was in assumpsit, was sued out in 1835, and another action was brought against the present defendants, in their individual capacity, to recover for that portion of the work which had been done since the testator's death; it being proved that alterations were Mr. Justice Littledale.—I think it quite clear that these plaintiffs must be considered under the words of this act as the occupiers of the cut and towing-paths, and that consequently the rule on them as such was properly made. Mr. Justice Williams and Mr. Justice Cole-made in the building since that time. Both ridge concurred. Judgment for the defendant.-Bruce and the Bath River Company v. The Churchwardens of Hanham Mills, H. T, 1840, Q. B, F. J, actions were referred, and the heir of the testator was made a party to the reference. The arbitrator by his award, directed the second action to be discontinned, and that the verdict in the 508 Superior Courts: Common Pleas. Maule, J.-The plaintiff stopped the operation of the statute by suing out his writ; but his demand was limited by his particulars, which he may from time to time amend, while good grounds are shewn for amendment. It is the declaration that operates on the statute, not the particulars. I think Lord Denman exercised a very sound discretion in making the order for the amendment. first action should stand in favour of the plain- | with a view of defeating the Statute of Limitiff for 2951. 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 defendants in the second action, and which the plaintiff expected to be able to prove to have been done in the lifetime of the testator. E. V. Williams shewed cause, and contended that the order in question met the justice of the case, and was no hardship on the defendants. The plaintiff only sought not to be prevented from recovering for what was done prior to the testator's death. It is said that the amendment would deprive the defendants of the benefit of the Statute of Limitations. Maule, J., referred to Staples v. Holdsworth.b E. V. Williaws.-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 time, and ought not to be barred by the statute; but the amendment was not applied for with any view to save the statute. Kelly and Powell, in support of the rule. No reason is given for the plaintiff's delay; there is a plea of payment, and this is an action against executors. Another action, too, in this case has been brought for the same demand as that sought to be included. The plaintiff ought not to be in a better situation than if he brought a fresh action. The heir is the party really liable. Rule discharged with costs.—Jones v. Corrie and another, executors of Wilkins, H. T. 1840. C. P. ATTORNEY AND CLIENT.-AWARD An attorney brought an action for his costs, and a certain sum was paid into Court. The cause was referred, and it was agreed that the claim of the plaintiff should be limited to a certain day; he was found to be overpaid to that day. The Court refused to disturb the award. This was an action of assumpsit for the balance of an attorney's bill, to which there was a plea of payment of 217. 15s. into Court. The defence was, that there was no authority on Tindal, 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 taxation. 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 his 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 for work which he now thinks he shall be able to prove were done in the lifetime of the testator. No difficulty is cast upon the defendants; if they are not liable, the new items will not affect them. Bosanquet, J.-I am of the same opinion. The plaintiff seeks to recover for all the work, part being done in the lifetime of the testator, and part since his death; and he, therefore, in the first instance brings two actions. It turns out, on further investigation, that a smaller portion than he at first supposed has been done since the death. With reference to the Statute of Limitations, it may be observed that the plaintiff seeks to introduce the latter portion of the work. Erskine, J.-This is no fresh cause of action. The plaintiff only seeks to recover the whole of what was done before the death of the testator. The amendment is not sought a See 5 B. N. C. 188; 7 Scott, 106. b 6 D. P. C. 715. down to that day by 21. or 31., and a verdict was consequently entered for the defendant. for taxation, by altering the day down to which Crowder applied for a rule to amend the rule the bill was to be taxed. The reason why that day was fixed on was, that the plaintiff could clearly prove that the authority given to the plaintiff existed down to that day. The defendant being once liable, the burden of shewing the authority to have been revoked clearly laid upon him. Bosanquet, J.-I think no rule should be granted. Though it turns out that a day was fixed which was to the disadvantage of the plaintiff, yet he was bound by his assent. Coltman, J.-This is in effect an application to set aside the verdict, because evidence is discovered which might, if presented at the trial, have led to a different result. Such an application can only be made on payment of costs, and is not grantable at all when the matter in dispute only amounts to 27. or 31. Maule, J., concurred. Briggs v. Glover, H. T. 1840. C. P. New Publications.—Professional Lists.—Bankruptcies superseded.~Bankrupts. 509 LIST OF NEW PUBLICATIONS. The Law and Practice relating to Landlords and Tenants, comprising the most approved modern precedents, alphabetically arranged, under distinct and separate heads, with notes, Roberts, William, and James Smith Clarke, Cole- White, Richard, and Giles Miller, Goudhurst, Kent, BANKRUPTCIES SUPERSEDED. sive, with dates when gazetted. illustrations and cases. By R. Shipman, Esq., From March 24th to April 17th, 1840, both incluEditor of "Jones's Attorney's Pocket Book," and author of "The Attorney's New Pocket Book, Notary's Manual, and Conveyancer's Assistant," 12mo., price 178. Compendium of the Laws of England, Scotland, and Ancient Rome, for the use of Students; containing the laws of Marriage. In two By James Logan, Esq., Advocate. parts, price 5s. sewed. Divorce considered.-By William Mushett, Esq., of Gray's Inn, Barrister at law. 8vo, 28. The Practice in the Court of Bankruptcy relating to Bonds, and other proceedings under the Act for Abolition of Arrest on Mesne Pro Moore, Peter, Kirwain, Glamorgan, Innkeeper, Curtis, John Harrison, Soho Square, Bookseller. Wilcox, Thomas, Broadway, Deptford, Victualler. BANKRUPTS. cess. By Scrope Ayrton, Esq., Barrister at From March 24th to April 17th, 1840, both incluLaw, and Deputy Registrar of the Court of Review. Price 4s. The Trial of John Frost for High Treason at Monmouth. By J. and T. Gurney. 15s. bds. Price Privileges of the Serjeants at Law.-Proceedings before the Judicial Committee of the Privy Council, and in the Court of C. P. J. Manning, Serjeant at Law. By Practice of the Superior Courts of Law at Westminster. By R. Lush, Esq., Part 1. Price 15s. Daniel's New Chancery Practice. Vol. II., Part 3, with a copious Index completing the volume. 16s. bds. Points in the Law of Discovery. By J. Wigram, Esq., Second Edition. 15s. bds. The Law of Real and Personal Property, according to the Text of Blackstone, incorporating the Alterations down to the present time. Second Edition. By James Stewart, Esq., Barrister at Law. 188. bds. MASTERS EXTRAORDINARY IN CHANCERY. sive, with dates when gazetted. Arnison, Thomas, Little Tufton Street, Westminster, Builder. Green, Off. Ass.: Pope, Gray's Inn Square. March 27. Avens, John, Leeds, York, Stuff Merchant. Robinson & Co., Essex Street, Strand; Middleton, Leeds. April. 10. Anslow, Thomas, Shrewsbury, Salop, Upholsterer. Vincent & Co., King's Bench Walk; Watson, Bracher, William, Great Ormond Street, Painter and House Decorator. Lackington, Off. Ass.; Stevens & Co., Queen Street, Cheapside. March 24. Boorman, John Luke, Gravesend, Kent, Silversmith and Jeweller. Gibson, Off. Ass.; Newbon, Hatton Garden and Gravesend. March 24. Blundell, William, and Robert Falk, Liverpool, Merchants. Holden & Co., Liverpool; Taylor & Co., Bedford Row. March 24. Blaxland, William, Birmingham, Woollen Draper. Robinson & Co., Essex Street; Ward & Co., Beastall, William, Nottingham, Draper. Cowley, 27. Burton, James, Manchester, Plumber and Glazier. Milne & Co., Temple; Bent, Manchester. March 31. From Murch 24th to April 17th, 1840, both inclu- Barton, John Wrigley, and Horatio Barton, other sive, with dates when gazetted. Morris, Charles, Leicester. March 27. DISSOLUTIONS OF PROFESSIONAL PART NERSHIPS. From March 24th to April 17th, 1840, both inclusive, with dates when gazetted. Nethersole, William Dickenson, and Edward Bar ron, Essex Street, Strand, Attorneys and So- Harvey, Richard, and John Macworth Wood, Lin- wise Horatio Nelson Barton, Ancoats or Ald- Bates, William, Liverpool, Theatrical Manager, |