COMMON BENCH. possessed," they ought to have done more than put in the writ of fi. fa. and that the recital of the judgment in the writ is not sufficient. Then as to the pleas of no notice of action under the County Courts Act, and that the bailiffs acted in pursuance thereof, the jury found that the bailiffs were bonâ fide acting in pursuance of the County Courts Act; and that finding is consistent with recent decisions and the case of Booth v. Clive, 2 L. M. & P. 283, in which this Court upheld a similar direction of the judge in point of law. The circumstance of the indemnity being given to the bailiffs does not negative their acting bonâ fide under the above Acts. They were therefore entitled to notice of action. MAULE, J.-With respect to the point of the plaintiff's possession of the goods, I think the distinction pointed out quite satisfactory. By this deed it was intended that the plaintiff should have possession, and the assignors were bound to give possession. The other question is, whether the two officers are shewn to have acted under a judgment, and what is the effect of an indorsement on the writ that one of the officers had executed that writ? It is said that that is an admission by the plaintiff of the truth of the matters of fact stated in the writ, and cases cited shew that a statement in writing or conversation, a portion of which is put in evidence by one party affecting the verity of the other party, the other party has a right to have the whole given in evidence. The question is whether the indorsement on the writ is any statement of a matter of fact, of which the writ forms a part. Now the officer says simply by the indorsement I took the goods in consequence of having this writ: he had nothing to do with the truth of the matters stated in the writ, and his indorsement does not amount to an assertion of any thing beyond the having the writ sent to him. So if a sheriff grants a warrant reciting a writ, that only amounts to this, "I order you to take goods by virtue of a writ delivered to me." That brings this case into conflict with Bessey v. Windham, in which the judgment does not expressly say that it is sufficient to produce the writ without producing the judgment, but proceeds on the authority of Haynes . Hayton and Goss v. Quinton, in which cases the documents were offered as evidence of matters stated therein. Here the writ was not offered as evidence of any matter of fact stated in the writ, but only to shew that the high bailiff ordered the sub-bailiff to seize the goods, and that the latter so seized them; and that does not make the writ evidence of the truth of its contents. The admissibility of a declaration accompanying an act, is not evidence of the truth of the matter so accompanying it. That distinction seems to have been lost sight of in Bessey v. Windham. In Glave v. Wentworth the ruling of Parke, B. was wrong, if the decision of Bessey v. Windham was right. That ruling shews that the recital of the writ in the warrant is not evidence of it, and so also I think the indorsement on the writ, although put in by plaintiff, is not evidence of any matter recited in the writ. As to the indemnity, I concur in the judgment, for the reasons given by the Lord Chief Justice. CRESSWELL, J.-I am of the same opinion. The assignment was operative between the parties to it. It was not argued that it was not signed, sealed, and delivered, and intended to give a legal property to the party subject to the trust. Therefore, it can only be disturbed by creditors: it cannot be disturbed by an execution creditor unless he shews a judgment. The writ of execution is not evidence of a judgment; and the indorsement on it only shews that the high bailiff granted a warrant upon it, and that the Court said to him that there was a judgment. I think that the decision of Parke, B. in Glave v. Wentworth, is the correct one, and that the warrant is not proof of the writ, and that the writ is not proof of any matter of fact asserted in that instrument. As against the high bailiff, he was shewn to have issued the warrant. This, therefore, was a case in which the plea of "Not possessed" ought to have been found against the defendants. The fact of the officers taking an indemnity may be accounted for in many ways: they may not have been satisfied that the assignment was fraudulent, and so have claimed an indemnity; but that is not inconsistent with their acting in the execution bonâ fide under the County Courts Act. WILLIAMS, J.-I consider that by this decision We are only reverting to the old doctrine of law, that the sheriff must shew the judgment as well as the writ of execution in a case like the present. It cannot be denied that our decision is directly contrary to that in Bessey v. Windham, which I think a mistaken decision. In the judgment in that case the Court does not dissent from or make any observation upon the cases of Lake v. Billers and Martin v. Podger. It is unnecessary to consider Whether the decision in Bessey v. Windham was Fight on the second point or not. As to indemnity, I concur with the rest of the Court. Rule absolute to enter judgment for the plaintiff, as against all the defendants, on the plea of "Not possessed;" and discharged as to the residue. COMMON BENCH. Friday, Jan. 30. MASTERS v. Lowther. Attachment-Extortion by bailiff. Semble, that the proper title of affidavits in support of an attachment against a sheriff's officer for extortionate charges on a fi. fa. is in the cause. The officer is not entitled to charge as expenses, for search for detainers, or for discharge when on a fi. fa. the sum to be levied is paid at once. Under the 7 Wm. 4, and 1 Vict. c. 5, the Court has power to punish the actual wrongdoer. A rule nisi having been obtained against Emanuel Jones, an officer of the Sheriff of Middlesex, for extortion. (18 Law T. 226.) Bramwell shewed cause.-There is a preliminary objection to the title of the affidavits, as being improperly entitled in the cause of Masters v. Lowther. This rule is not a proceeding in the cause or relating to it; and it is not directed against the sheriff who has the conduct of the execution, but it is an independent and substantive proceeding against E. Jones. Fortescue, in support of the rule.-There is no case in which such an objection has hitherto been taken. From inquiry at the Rule Office, it is found that the practice is to entitle the affidavits in such applications in this way. (Davies v. Griffiths, 4 M. & W. 377.) CRESSWELL, J.-This seems the proper title, because the rule relates to misconduct in the cause. JERVIS, C.J.-We shall not embarrass ourselves with hunting for reasons in support of such an objection as this. COMMON BENCH. JERVIS, C.J.-I am of opinion that this rule should be made absolute. This is no doubt a penal proceeding, and under the statute we have the power of dealing with the actual wrongdoer. But in this case we see that Jones is identified with Lewis, his follower; and the extortionate charge for poundage is a strong circumstance to shew that he is so identified. As to the three disputed items, the Court, after consulting the Master, is not so satisfied that the charge for leaving the man in possession is so unjustified as to proceed against the officer for that, but the charge of 3s. 6d. for search has no relation to fi. fa. and is improper; and so also the 4s. 6d. for discharge is improper. Rule absolute for attachment to lie in the office for a fortnight, and if within that time Jones pays back the 8s. and the costs of this rule, to lie there for the further period until fifth day of next term, that the officer may then apply to the Court. STEAD V. ANDERSON. New trial-Setting aside rule for-Delay. Where a rule for a new trial had been granted so long ago as 1844, the Court refused to set it aside on application of the plaintiff, stating that new› facts material to the issue had recently transpired, and that the Court had been misled in granting the rule. The plaintiff applied in person to set aside a rule for a new trial granted so long ago as 29th June, 1844, on the ground that new facts material to the plaintiff's cause had recently turned up. JERVIS, C. J.-When did you get possession of the new facts? Plaintiff.-Ten months ago. JERVIS, C.J.-This cause has been in the paper of new trials for four years. Plaintiff.-Yes; the case is Stead v. Anderson, and the Court was deceived when it granted the rule. CRESSWELL, J.-It was, as I recollect, on a question of law that the Court decided against you, ' and granted a new trial. JERVIS, C.J.-You propose to set aside the rule on the ground that the Court miscarried in its law, because it went on a dictum of Alderson, B. which you say was not well founded. Bramwell, upon this intimation, said he would withdraw the objection, and proceed to the merits. It appeared that 197. 6s. had been recovered for debt and costs, and a fi. fa. issued for that amount. The levy had been intrusted by the sheriff of Middlesex to Emanuel Jones, one of his bailiffs, to levy, who went in company with Lewis, an auctioneer, to the defendant's residence to execute the levy. When they were admitted, Jones delivered the writ to Lewis, desiring him to proceed, and left, saying that he would send the man over to keep possession. The man accordingly came; but before any inventory was taken, or any thing done, the defendant paid the amount of debt and costs, and 54. 2s. 6d. demanded for the expenses of the levy-the time occupied from the first entrance of Jones and Lewis until the payment, being scarcely more than a MAULE, J.-In this case there was a rule granted quarter of an hour. The defendant then employed in the time of Tindal, C.J. so long back as 1844. an attorney to write to the sheriff, complaining of You say there was a mistake about facts or in the the extortion; and thereupon some communication law under which the Court was induced to grant it. took place between the defendant and Jones and Now Tindal, C.J. died in 1846, and was succeeded Lewis, the latter, insinuating that the overcharges by Lord Truro, who removed up in 1850. Do you had been the result of a mistake, first offered to re- think we can go back and review Tindal's decision turn a smaller sum, and ultimately left at the defend-after so long a time? ant's residence 17. 14s. 1d. being 17. 7s. 11d. on account of overcharges, and 6s. 8d. costs of defendant's attorney. The remaining 37. 14s. 7d. which, with the above 11. 7s. 11d. made up the 51. 2s. 6d. was sought to be accounted for in this way : Plaintiff.-The Court was deceived. MAULE, J.-But it ought not to have been deceived. You have made this motion before. Plaintiff.-Yes, in November 1849. CRESSWELL, J.-On principle, we cannot now hear you. You wish us to hear an argument to shew that, on a former occasion, and so long back as 1844, the Court were mistaken, and misled by an apocryphal report. This we cannot do. Such a motion should have been made within four days. JERVIS, C.J.-We cannot hear any more. Plaintiff. Why not? MAULE, J.-Because we will not. Rule refused. BUSINESS OF THE WERK. Thursday, Jan. 29. It appeared that, in the first instance, the officer had actually added the expenses of the levy, includMAGNUS U. BUTTERMER.-This was a special case stated ing even poundage, to the amount of the debt and for the opinion of the Court. It was an action of assumpsit costs, and charged poundage upon the aggregate of on a marine policy of assurance effected on the ship Eliza those sums, and so extorted poundage upon pound-beth. The vessel went to load coal at Newcastle, and being age, as well as upon his own charges. [JERVIS, C.J. placed by the master to lie on a hard bottom, when the observed that this was misconduct which nothing The question whether the injury sustained was occatide rose she was lifted by the swell, bumped, and strained. could justify or extenuate, and that Jones was unfit to sioned by a peril of the ses, so as to render the underwriters be an officer any longer.] The charges now disputed liable. Tomlinson for the plaintiff, and J. Wilde for the were the 5s. for the man left in possession, the 3s. 6d. defendant. The case will be duly reported. for search, and the 4s. 6d. for discharge. Bramwell said that by the table of fees the 5s. for the man left in possession was allowed. [JERVIS, C.J.-The table says for each man left in possession, when absolutely necessary. How can it be said that it was absolutely necessary to leave a man in possession here?] The man was put in possession in the ordinary way, and the fraction of a day cannot be regarded. Then as to the 3s. 6d. this is the usual charge, and in the table of fees is thus stated, "For searching offices for detainers, 1s.; to bailiff's messenger for that purpose, 2s. 6d." [MAULE, J.-That applies to a capias, the detainer of a man's body; there is no such thing as a detainer of goods under a fi. fa.] And as to the 4s. 6d. discharge, that is another usual charge in the table, under "For any supersedeas, writ of error, order liberati, or discharge to any writ or process, &c. 4s. 6d." It was then urged that, under the 7 Wm. 4, and 1 Vict. c. 5, s. 3, the Court had the power of punishing the actual wrongdoer, and that Lewis was the wrongdoer, and not Jones. Fortescue, in support of the rule, was stopped by the Court. to Judgment for defendant. DOE dem. SAXTON v. TURNER.-Bovill moved on affidavit require the plaintiff in this action to give further particulars of the premises claimed in the ejectment. Application had been made at chambers. Deponent swears he cannot proceed with his defence to this action without further particulars than those contained in the demand. JERVIS, C.J.-The rule of court is simple enough; it says, you know what you are entitled to; therefore defend for that.] The question stands on this: here is an ejectment brought, and the description is quite indefinite. plaintiff will state how much land he wants, that would be something. We are entitled either to a description of the boundary or a statement of quantity. JERVIS, C.J.-I do Refused. not think so. If DODDERIDGE . MEATHERALL. Crowder, Q.C. and Taprell shewed cause against a rule moved by Greenwood, .. for a new trial in this case on the ground of surprise. Kinglake, Serjt. and Karslake, in support of the rule. Rule discharged. Re COBBETT.-Mrs. Cobbett applied for a writ of habeas corpus to bring up her husband, a prisoner for contempt, with a view to his discharge. The ground for the motion was the loss of the original warrant of commitment. [JERVIS, C.J.-The attorney swears he made search for the warrant of commitment, but could not find it: he does not swear it is lost.] We are advised by counsel that a warrant of commitment, as regards a prísoner's rights, is EXCHEQUER. like a bill of exchange, he can demand a sight of it. A affidavits. BLOOR, Assignee, v. BELL.-M'Intyre and M. Lloyd shewed cause against a rule for a new trial, or to reduce the verdict to 2501. Evans and Welsby, in support of the rule. Rule absolute to reduce the verdiet to 2501. Saturday, Jan. 31. ANONYMOUS.-Byles, Serjt. prayed the Court to enlarge a rule to enable him to shew cause at chambers. The reasonable course, where we ask payment of a sum of money, is for the rule to be so enlarged. Rule enlarged. DALLEY. PROCTOR.-Borthwick made absolute a rule herein no cause shewn. Rule absolute. Re ONE, &c.-Malcolm moved to strike an attorney off the rolls at his own request. All that the Court requires is satisfied by his affidavit. Leave granted. HAMILTON V. TERRY.-JERVIS, C.J. read the judgment of the Court herein. MAULE, J. dissentiente. DOB dem. HARGRAVES v. ROE.-Forster made absolute a rule herein for judgment against the casual ejector. No cause shewn. Term. Rule absolute. Part heard. Stands over. DALLEY V. PROCTOR.-Foster prayed an enlargement of the rule in this case. The rule was served yesterday at the attorney's office, and today Borthwick made it absolute. He is now gone. The affidavit shews that the rule was served on the day it became due. JERVIS, C.J.-As this rule has been served sharply, they must be made to suffer for it, and the rule must be dropped. You, therefore, need not ask for enlargement. Rule dropped. COURT OF EXCHEQUER. Reported by FREDERICK BAILEY, and C. J. B. HERTSLET, Esqrs. Barristers-at-Law. 17 Law T. 79. EXCHEQUER This was a special case stated for the opinion of Peacock, Q.C. argued for the plaintiffs. JUDGMENT. EXCHEQUER. the percolation by means of the well was a breach the purpose, upon notice given to each of them, of the agreement entered into between the plain- were thereby empowered from time to time to sp tiffs and defendants; and also of the obligation point a proper person or persons to attend and have imposed on the company (the defendants) by the the care, oversight, and management of such reAct of the 58th Geo. 3, c. 16. servoirs, aqueducts, and feeders, and for letting off As the plaintiffs are entitled to sue defendants for or conveying of such water from the same into such a breach of the agreement, actual loss of profit, rivers, streams, or cuts as aforesaid, and every by being unable to work the mill as before, is not such person or persons should be allowed and necessary to enable the owner to recover, nor is paid by the said company such salary for his or their it, if the company was not authorised to make the trouble as the said commissioners should direct and well, at Common Law.-See Embrey v. Owen, appoint. The Grand Junction Canal Company were authorised by an Act in the year 1793 to make their canal. Then it describes the state of the canal. I do not know whether that is very material, except that the summit of the said canal was near Maisworth, at a place called Cow Roast, and runs towards the Thames. The summit level of Cow Roast is about 400 feet above the level of the Thames at Londonbridge. Then it says that in the chain of chalk hills which runs from the county of Norfolk to the county of Dorset there is a transverse gap or cut at or near Tring aforesaid, and the said gap or cut was chosen as ment. This was a case which was sent for our course to the north of the said gap or cut has since Tuesday, Jan. 13.-Parke, B. delivered judg- the summit level of the said canal, and the line for its opinion by the Master of the Rolls. It is a case been chosen as the line for the North-Western which states that the plaintiffs have for some time Railway Company. Then it describes the purchase past carried on and now carry on business, in part- of the different mills, which is material to the preThe Court, after disposing of motions, went into the nership, as paper manufacturers, and for the pur- sent case. Soon after, the plaintiff, John Dickinson, New Trial Paper, notwithstanding this was the last day of poses of such business, they occupy and use cer- and his then partner, brought several actions for the DOLBY. INDIA AND LONDON LIFE ASSURANCE COM-tain paper-mills called Apsley Mill, Nash Mill, breach of the said Act of Parliament in not esta PANY.-This was an action on a policy of assurance effected Home-park Mill, and Crorley Mill, situate in the blishing the reservoirs. These were left to reference, with the defendants by the Anchor Assurance Company, parishes of King's Langley, Abbott's Langley, and ultimately an agreement was entered into be on the life of the late Duke of Cambridge, and the ques- and Rickmansworth, in the county of Hertford. tween the millowners on the one side and the com tion was, whether the Anchor Assurance Company had any The rivers Bulbourne and Gade, after uniting to- pany on the other, and by that agreement, after reinterest in the life of the Duke at the time of his death.gether into one river (the Gade) at a place called citing the Act of Parliament authorising the making Bramwell, Q.C. E. James, Q.C. and Bremridge, shewed cause. Channell, Serjt. Partridge, and Croxon appeared Two Waters, in the parish of Hemel Hempstead, in of the Grand Junction Canal, and reciting that an in support of the rule. The Court interrupted Channell's the said county, had for upwards of twenty years action had been brought, then it is stated it is agreed. argument, with an intimation that it should be resumed on last past, and from a period anterior to the 11th of between the parties in consideration of the covenants a future day. September, 1817, continually to the present time run thereinafter mentioned by the company they should JUPE U. THE GREAT WESTERN RAILWAY COMPANY.-The and flowed to the said mills in succession, for the pur- make the deviation in the manner therein described. Attorney-General asked the Court not to take this case in the absence of Jervis, C.J. By the COURT.-Let it stand pose of supplying the said mills in succession with Then all the proprietors agree to assign and execute. over to some day after Term. water for the working thereof. And the plaintiffs, all such matters and things as should be deemed advis for upwards of twenty years before and at the time able to put an end to all former claims and disputes. of the digging of the well hereafter mentioned, had And then it was also agreed that in consideration of and enjoyed, and of right ought to have had and the covenants on the part of the mill occupiers, enjoyed, and still of right ought to have and enjoy the company covenanted and agreed with them that the benefit and advantage of the said river for sup- they would, in the next session of Parliament, apply plying the said mills with water for the working for and do all they could to obtain an Act of thereof. The company of proprietors of the Parliament authorising a deviation of the canal, Grand Junction Canal was incorporated by an Act by which deviation a part of the canal was to of Parliament passed in the year 1793, and by the be filled up, and the canal was to be conducted in 9th section of that Act the company was autho- and through the streams and different rivers, which rised to make and complete a said canal and col- was thought to obviate the mischief complained of lateral cuts; and by the 35th section of the Act it by the millowners. Then there is a stipulation in was provided that before any of the brooks, streams, the agreement that the company should not nor rivulets, water, watercourses, or springs, which would endeavour at any time thereafter to make any have supplied the rivers or streams, the Gade or other communication or alteration in the state of the Colne, or the Berkhampstead river, called Bul- canal or of the rivers Gade and Bulbourne or say Right to flowing waters-Mill streams—Under- bourne (being the said river Bulbourne hereinbefore diversion of the waters of those rivers, but the same ground waters. mentioned), or any of the streams or cuts which are should continue as at the then present time existing When springs of water underground rise and come found out of or communicate with such rivers or That agreement was followed by an Act of Parliament to the surface and form streams or rivers, the streams, or any of them, should be taken or used which recites that the canal company had made and established rules of law in respect of rights to for the use or supply of the said intended canal; completed the canal, and that disputes had arisen, flowing waters, apply; each riparian owner is and before the said rivers or streams of the and it was thought that they might be settled, and, entitled not to the property in the flowing water; Gade, the Colne, or the Bulbourne, or such amongst other things, it was thereby enacted that it but the usufruct of the stream or river for all rea- other streams or cuts, should be diminished by should not be lawful for the said company, on any ac sonable purposes, according to the nature and situa- means thereof, the commissioners therein mentioned count or pretence whatever, to make any alteration tion of the stream or river, and each such owner should set out in some place or places as near to the in the state of communication between the said canal has a remedy for the infringement of this right. line of the said intended canal, and to such brooks, and the rivers Gade and Bulbourne, northward of If the stream is diverted by altering its course, streams, rivulets, watercourses, or springs respec- Nash Mill, other than is authorised by the said Act, or cutting down its banks, or the water abstracted tively as they should judge most proper and con- nor to direct any of the waters of the said rivers, or from it for unauthorised purposes, the owner has venient, and piece or pieces of land for the making either of them, in any other manner than they are a right of action against the wrong doer. and forming a reservoir or reservoirs for collecting diverted at the time of the passing of the said Act The plaintiffs were the owners of certain mills, and flood waters sufficient to supply such rivers, and Then the clause relating to the reservoirs in the had for more than twenty years enjoyed the streams, and cuts with a quantity of water equal to original Act are repealed, and all these deviations stream of water in question for the purposes of what should be taken from the said rivers, brooks, were duly made, and no diminution of the water of those mills. The defendants sunk and excavated streams, cuts, rivulets, water, watercourses, or the said rivers Bulbourne and Gade, or any of them, a large well in their own ground, close to the springs for the use or supply of the said intended by means of a well sunk in their neighbourhood, and east bank of the canal or stream, and close to but canal, and that the said company should, at their pumping thereout, as hereafter mentioned, had ever below the southern end of the summit level. The own expense, make and for ever after support and been made by the said company, at or before the well was sunk by the company for the purpose of maintain a reservoir or reservoirs of such extent and time of the making of the said agreement, and the adding to the supply of water in the summit levels in such manner, together with such aqueducts or passing of the said last-mentioned Act. In the year of the canal, and by means of pumps and a steam-feeders from such reservoirs to such rivers, streams, 1824, the plaintiff, John Dickinson, built another engine, pumped into the said summit level large and cuts respectively as should be sufficient for the mill, and then, in the year 1849, the company quantities of water which collected into the well purposes aforesaid, and the same should at all times proprietors of the Grand Junction Canal sunk and below the surface of the ground: the water was be made use of for supplying and serving with water excavated a large Well at Cow Roast, in their own taken from the river after it formed part of the such rivers or streams, and cuts, and the mills ground, close to the east bank of the canal, and stream, not by the reasonable use of it by another thereon respectively; and that whenever there close to, but below, the southern end of the summit riparian owner, but by the digging of this well. should be a want of water in any of the said rivers, level. This Well was sunk by the company for Held to be clearly a diversion, and that an action streams, or cuts, for the use or supply of any mill the purpose of adding to the supply of water in the would lie at Common Law against the defendants or mills thereon, it should be lawful for the person summit levels of the canal. With this object, the for the injury which had resulted from the un- who should be appointed as thereinafter mentioned, Well has been excavated to the depth of seventyauthorised act, to the non-right of the plaintiffs. by a majority of the mill occupiers who might be two feet, and the company have erected, in and As to the obstruction of the water which never affected thereby, and he was thereby empowered over it, pumps and a steam-engine, and have, did form part of the river, but had been prevented and directed at the instance of the occupiers of such means thereof, pumped into the said summit level, from doing so in its natural course by the exca- mill or mills to let out from such reservoir or re-north of Cow Roast Lock, large quantities of water vation of the well, whether the water was part servoirs, and to convey to any such rivers, streams, which collected into the Well below the surface of of an underground watercourse or percolated or cuts, by means of such aqueducts or feeders the ground. The plaintiffs, considering themselves through the strata : above such mill or mills, such supply of water as Held, also, that an action would lie, as the mill should be equal at least to the quantity taken from owners were entitled to the benefit of the stream such rivers, stream, or cut above such mill for the in its natural course and they were deprived of use and supply of the said canal; and the occupiers part of that benefit, if the natural supply of the of the several mills which might be affected by the taking of the water which supplies any such rivers, Held, also, that the taking away the waters of the streams, or cuts as aforesaid, or the major part of rivers or the supply of the river from springs, them, who should attend a meeting to be held for Monday, Nov. 17. stream is taken away: aggrieved by these acts of the company, filed a hill in her Majesty's High Court of Chancery on the 21st of April, 1849, praying that the said company proprietors of the Grand Junction Canal might be ordered and decreed to fill up the said well so dug by them below the Cow Roast Lock, and that the said company might be restrained by the order and injunction of the Court from further excavating of EXCHEQUER. EXCHEQUER. *EXCHEQUER. sinking the said well, or keeping the same open or ment and agreement? Then there is another ques- but by the digging of a well which is clearly a diverexcavated, and from pumping or removing any water tion, whether the digging of the said well at Cow sion, and an action will lie at common law against out of the said well into the summit level of the said Roast, and the pumping thereout by the company the company for the injury which has resulted from canal, and from digging or sinking any other well. into the said summit level of the said canal, a quan- the unauthorised act to the non-right of the mill. Numerous affidavits were filed and experiments under tity of underground water which, in the natural and owners. If, indeed, it had appeared that the comthe direction of the Court were ordered to be made accustomed course of such water, anterior to, and at, pany were ignorant, and could not by any degree of by Mr. Cubitt to ascertain the effect of the well. The and ever since the 11th of Sept. 1817, would have care have ascertained before making the well that it experiments were made, and Mr. Cubitt's report is flowed underground into the river Bulbourne, and would have the effect of obstructing the water, and annexed, into which it is unnecessary to inquire, which water would, in the natural course of the rivers when they discovered that it did, could not have rebecause the substance is afterwards stated in the case. Bulbourne and Gade, have flowed to the mills of the paired the mischief, it might have raised a question It is taken as admitted, for the purpose of a special plaintiffs, and been applicable to the working whether the action was maintainable, but this point case, but not for the purposes of the said case or thereof without the plaintiffs being prevented is not suggested in the case, and it would be immaotherwise, that the said company by digging the thereby from working their mills so beneficially terial for the decision of the principal question in the said well at Cow Roast and pumping the water as they otherwise might, and could, and would case before the Master of the Rolls, as will appear thereout as aforesaid, had diverted and prevented have done, are a violation of the Act of Par- from our answer to a subsequent question. With from flowing into the river Bulbourne, and pumped liament. Then, afterwards, there are other questions respect, then, to the right of action of the millinto the said summit level of the canal a quantity of which ask for the opinion of the Court: whether owners at Common Law against the company for underground water, which in the natural and accus- actual damage to the plaintiffs was done by the abstracting water which actually had formed a part tomed course of such water anterior to and at and cutting of the canal; or whether it is a violation of of the stream of the rivers Bulbourne and Gade, by ever since the 11th of September, 1817, would have the Act of Parliament or of the agreement, or action- sinking the well, we think that the company are flowed under ground into the said river Bulbourne, able at Common Law, supposing this diversion has liable for sinking the well. As to the obstruction and also a certain other quantity of underground not produced any actual damage to the mills. This of the water which never did form part of the river, water which would have otherwise percolated and case was sent for our opinion by the Master of the but has been prevented from doing so in its natural gone through the intervening chalk and earth under- Rolls, and I have stated the substance of the case. course by the excavation of the well, whether the ground into the said river Bulbourne, and both His lordship has been pleased to ask six different water was part of an underground watercourse or which quantities of water would in the natural and questions, on which we shall certify our opinions in percolated through the strata, we are also of opinion accustomed courses of the rivers Bulbourne and favour of the plaintiffs and against the company, that an action would lie. The millowners were entiGade have flowed to the mills of the plaintiffs and been and, according to the practice which this Court has tled to the benefit of the stream in its natural course, applicable to the working thereof, and that by the loss adopted for several years past, we proceed to state and they are deprived of part of that benefit if the of each of the said quantities of water the plaintiffs have our reasons for the 'opinion which we give. Ques- natural supply of the stream is taken away. The been prevented from working their said mills so tions of rights to flowing waters have been much remaining questions are whether the sinking of the beneficially as they otherwise might and could and discussed in modern times in several cases: we refer well and the consequent abstracting of the water of would have done; and that by the digging of the to those of Mason v. Hill, 5 B. & Ad. p. 1; Wood the rivers and the waters and springs supplying it, said well at Cow Roast, and the pumping thereout v. Waud, 3 Exch. Rep. 748; Embrey v. Owen, 17 is a breach of the agreement between the millby the company a portion of the water of the river Law T. 79; and since reported in the Reports of this owners and the company of the 11th Sept. 1817, or of Bulbourne, which would in the usual and natural Court. They have been discussed upon several the obligation imposed on the company by the Act course of the river have flowed to the mills of the occasions, and placed on their proper foundation. of 58 Geo. 3, c. 16. We are of opinion that the plaintiffs, and be applicable to the working thereof, is We consider it as settled law to have a stream run- taking away the waters of the rivers or the supply of drawn off through the intervening chalk out of the ning in its natural course is not by a presumed grant the rivers from springs, the percolation by means of said river into the said well, and pumped into the from long acquiescence on the part of the riparian the well is a breach of the agreement and also of the summit level of the canal, and by means thereof the proprietor above and below, but is ex jure nature Act of Parliament. The agreement recites the Act plaintiffs have been prevented from working their (there are several authorities: Ling v. Piggott, 3 of the 33 Geo. 3, which provides that before any of said mills so beneficially as they otherwise might Buls. 339; Popham, 166; Tyler v. Wilkinson, in 4th the brooks, streams, rivulets, water, watercourses, and could and would have done. The motion for an American Reports, by Storey, J.; and several others or springs, which supply the rivers Gade and Bulinjunction having been renewed before the Master there are referred to), and an incident of property as bourne, or any of the streams or cuts which were of the Rolls, his Lordship has directed this case to much as the right to have the soil itself in its natural formed out of or communicated with such rivers or be stated for the opinion of the judges of her state, unaltered by the acts of a neighbouring pro-streams, should be taken and used for the purposes Majesty's Court of Exchequer, and that the questions in prietor, who cannot dig so as to deprive him of the of the canal, and before the rivers Gade and Bulthe case should be the following, namely, first :-support of his land. But in the much considered bourne, or such other streams or cuts, should be whether the said company by digging the said well case of Acton v. Blundell, in the Court of Ex. Ch. diminished thereby, a reservoir should be made for at Cow Roast, and pumping the water thereout, as 12 M. & W. 324, a distinction is made for the first collecting the flood waters sufficient to supply the aforesaid, and thereby diverting and preventing from time between underground waters and those which said rivers with a quantity of water, at least equal to flowing into the river Bulbourne, and pumping into flow on the surface; and it was held that the owner of what should be taken from the said rivers, brooks, the said summit level of the said canal a quantity of a piece of land who has made a well in it, and thereby streams, cuts, rivulets, waters, watercourses or underground water which, in the natural and accus- enjoyed the benefit of underground waters, but for springs, for the use of the canal; and that whenever tomed course of such water anterior to and at and less than twenty years, has no right of action against there should be a want of water in any of the said ever since the 11th of September, 1817, would have a neighbouring proprietor, who, in sinking for and rivers, streams, or cuts, for the use or supply of any flowed underground into the river Bulbourne, and getting coals from his soil in the usual and proper mill or mills thereon, it should be lawful for the which water would, in the natural and accustomed manner, causes the well to become dry. That deci- person who should be appointed as thereinafter course of the rivers Bulbourne and Gade, have sion goes no further. In such a case the existence mentioned, and he was thereby empowered and diflowed to the said mills of the plaintiffs, and been and state of underground water is generally unknown rected, at the instance of the occupiers of such mill applicable to the working thereof, and having before the well is made, and, after it is made, there or mills, to let out from any such reservoir, and to thereby prevented the said plaintiffs from working is a difficulty in knowing, certainly how much, if any, convey to any such rivers, streams, or cuts, by means their said mills so beneficially as they otherwise might indeed, of the water of the well, when the ground of such aqueducts or feeders alone, such mill or mills, and could and would have done, have violated the was in its natural state, belonged to the owner in such supply of water as should be equal, at least, said Act of Parliament, 58 Geo. 3, c. 16, and the right of his property in the soil, and how much to the quantity taken from such rivers, streams, or articles of agreement of the 11th of September, belonged to that of his neighbour, who, in digging a cuts above such mill, for the use or supply of the 1817, or either and which of them, or have rendered mine or another well, may possibly be only taking said canal; provided also, that in case a sufficient themselves liable to an action irrespective of the said back his own. These practical certainties make it very quantity of the flood waters could not be collected and Act of Parliament and agreement? Secondly :- reasonable not to apply the rules which regulate the obtained to answer the purposes aforesaid, at all whether the said company by digging the said well enjoyment of streams of water aboveground to sub-times and seasons of the year, then whenever and as at Cow Roast, and pumping the water thereout terranean water, especially when the result would be as aforesaid, and thereby diverting and preventing to limit the full enjoyment of the rights of property from flowing into the said river Bulbourne, and in the neighbouring owner, and to prevent him from pumping into the said summit level of the said canal extracting valuable metals or minerals from his own a quantity of underground water which would have soil, or making some other beneficial use of it. otherwise percolated and gone through the inter- When water is on the surface, the right of the owner vening chalk and earth underground, and would, in of the adjoining land to the usufruct of that water is the natural and accustomed course of the rivers Bul-not a doubtful matter of fact; it is public and noto-should not at any time thereafter take or use or have bourne and Grade, have flowed to the said mills of rious, and such a right ought, as a matter of course, the plaintiffs, and been applicable to the working to be respected by every one; and, indeed, if the thereof, and have thereby prevented the plaintiffs course of the subterranean stream were well known, from working their said mills so beneficially as they as in the case with many which, sunk underground, otherwise might, and could, and would have done, pursue for a short space a subterraneous course, and have violated the Act of Parliament, 58 Geo. 3, c. then emerge again, it never could be contended that 16, or the articles of agreement of the 11th of Sept. the owners of the soil under which the stream flowed 1817, or either and which of them, have rendered could not maintain an action for the diversion of it, if themselves liable to an action, irrespective of the it took place under such circumstances as would said Act of Parliament and agreement? Thirdly:- have enabled him to recover if the stream had been whether the digging of the said well at Cow Roast wholly aboveground. When, however, the springs and the pumping thereout by the company so as to come to the surface, and form streams and rivers, draw off, out of the said river Bulbourne, through the established rules apply, that each riparian owner the intervening chalk and earth into the said well, is entitled, not to the property in the flowing water, and pumping into the said summit level of the canal, but the usufruct of these streams for all reasonable puralportion of the water of the said river Bulbourne, poses, to drink, to water his cattle, or to turn his mills which would, in the usual and northward course of according to the nature and situation of the stream; the river, have flowed to the mills of the plaintiffs, each such owner, therefore, has a remedy for the and been applicable to the working thereof, whereby infringement of this right. If, then, the stream is the plaintiffs have been prevented from working diverted by altering its course or cutting down its their mills so beneficially as they otherwise might, banks, or the water abstracted from it for unauthoor could, and would have done, is a violation of the rised purposes, the owner has a right of action Act of Parliament 58 Geo. 3, c. 16, and the articles against the wrong-doer. In the present case the of agreement of the 11th Sept. 1817, or either and water is allowed to have been taken from the river which of them, or would render the company liable after it formed part of this stream, not by the to an action irrespective of the said Act of Parlia- reasonable use of it by another riparian proprietor, soon as it should appear that such a sufficient quantity of flood waters could not, at all times, be collected and retained for the purpose of constantly supplying such rivers, streams, or cuts, and serving such mills with a quantity of water equal at least to what should be taken from them for the use and supply of the said intended canal, the said company of proprietors any further communication with any of the waters of the said rivers, streams, or cuts, or either of them, or with the brooks, streams, rivulets, waters, watercourses, or springs, which then supplied the said rivers, streams, or cuts, for any purpose whatsoever relating to the said intended canal, but should from thenceforth absolutely cease to take, or cause to be taken or used, the said waters, or any part thereof, for any purposes whatever relating thereto, except it were the waste water only thereof, after the same were discharged from the said rivers, streams, or cuts, anything in the said Act contained to the contrary thereof in anywise notwithstanding. The agreement then recites that there have been disputes between the millowners and the company, and that, upon mature deliberation, it was admitted that full security could be obtained for the mills, and an end put to disputes by varying the curve of the canal in a track therein referred to, and the Act contains a covenant by the company to endeavour to procure an Act to authorise the deviation, and also a covenant that the company should not at any time make any other alteration in the state of communication between the canal and the said rivers Gade and Bulbourne, above the higher mill, or any diversion of the water of those reservoirs, but the same shall EXCHEQUER. continue as at present existing. It appears to us to be clear that the meaning of the Act was, that the millowners should have the benefit of all the waters of the Gade and Bulbourne, and of the water and springs that supply those rivers, as they existed at the date of it. They were entitled under the original Act (the 33 Geo. 3, c. 80) to have that quantity provided by a reservoir; and when the reservoir is by mutual consent done away with, so that there is no supply to be provided equal to what should be taken from the rivers, or waters, and springs supplying them, and there is a stipulation that no diversion of the water of the rivers should be made, but that they should continue as then existing. Surely it was meant that they should not only not take from the rivers what had become part of them, but if they did, they should not take from the waters or spring which, in their natural course, would form part of the rivers in their then existing state. It was meant that the millowners should have the benefit of the full flow of the rivers in their natural state, as they were at the date of the agreement, and if so, the working of the mill, which had the effect of diminishing the flow, was a breach of that covenant; whether the company in sinking it could have protected themselves or not, on the ground that they took a reasonable care, and could neither have foreseen the injury to the millowners or repaired it. They were bound by their covenant not to diminish the supply; if they did, no matter what was the care they took, it was an absolute agreement, and they are liable. The terms of the Act of Parliament, 58 Geo. 3, c. 16, which prohibit the company from making a diversion of the water of the rivers Gade and Bulbourne are not so clear. They are only bound by the Act not to divert any of the water of the said rivers, or either of them, in any other manner than as diverted at the time of the Act. We think that the same construction ought to be put on these words as those used in the agreement, and that the meaning was, that the rivers should be left with the same quantity of water so far as the acts of the company were concerned. This, however, we apprehend to be an immaterial point, as the obligation imposed by the covenant on the company must still remain, as it never could be the intention of the Legislature to alter it by the 58 Geo. 3. One other observation only remains to be made, viz. that as the millowners are entitled to sue the company for a breach of this agreement, as actual loss of profit, by being unable to work the mill as before, is not necessary to enable the owner to recover, nor is it if the company was not authorised to make the well at Common Law. (See Embrey v. Owen, 17 Law T. 79.) We therefore answer the several questions of the Master of the Rolls in favour of the plaintiffs. Jan. 15 and 24. MARKS V. HAMILTON. Insolvency-Insurable interest. A. obtained his discharge under the Insolvent Debtors Act. He afterwards effected a policy of insurance against fire, and subsequently, fraud having been discovered, the order for his discharge was revoked, and a fresh order made, postponing his discharge for twelve months; Held, that being in possession of the premises, he had such an insurable interest as would enable him to maintain an action against the insurance company. In this case the Attorney-General moved for a new trial, on the ground of misdirection. This was an action against the Sun Fire Office, to recover the amount of a policy of insurance effected on a certain auction-room, and other property. There was a plea on the record that the plaintiff was not interested in the property insured. It appeared that the plaintiff, before he effected the insurance, had been insolvent, and had obtained his discharge under the Insolvent Debtors Act. He afterwards effected this policy, and subsequently, fraud having been discovered, he was brought up before the Insolvent Debtors Court for rehearing, when the commissioner revoked the order of discharge, and adjudged that he was not entitled to his discharge till the end of twelve months from the date of the vesting order. The policy of insurance was taken out between the two orders, and, it was now contended, vested in the assignees of the insolvent. The second order rescinded the first, and vested all the property in the assignees, who now claimed the amount of the insurance. The insolvent has no insurable interest: he has a mere naked possession. (1 & 2 Vict. c. 110, s. 37.) Cur. adv. vult. JUDGMENT. should the defendant be allowed to harass the plaintiffs by compelling them to prove both form and substance? The guarantee was given to the company as such, and he ought not now, therefore, to be allowed to dispute the plaintiff's right to see in this form. Needham v. Law, 8 M. & W. 409, was cited. To support a plea of the Statute of Limitations it was objected that there was no proof of the ser- Gray, contrà.-It is the constant practice to allow vice of the writ of summons within six years. this plea. Hughes v. Thorp, 5 M. & W. 656; The Court granted a rule for a new trial, that the Wilson v. Craven, 8 M. & W.; Steward v. Dunn, opinion of a Court of Error might be taken, or 11 M. & W. 63; Davidson v. Cooper, 11 M. & W. that plaintiff might have an opportunity of prov-778, and many other cases to the same effect shew ing service. it to be so. This was an action tried before Maule, J. at POLLOCK, C.B.-The case of Davidson v. Cooper, Welchpool, Montgomeryshire. The defendant in 11 M. & W. is quite in point, and the rule will pleaded the Statute of Limitations. The cause of therefore be absolute. action arose in January 1840. The writ was dated 15th Sept. 1845, the declaration dated and filed 10th Aug. 1846, and notice thereof 17th Nov. 1846. The plaintiff proved an implied contract, but he did not prove the test of the writ, and the service of a copy within four months of the date.-and it did not appear that there had been any entry of continuances. A verdict was found for the plaintiff, with leave to the defendant to move to enter a nonsuit, or for a new trial on the point reserved. Morgan Lloyd, having obtained a rule accordingly, JUDGMENT. PARKE, ALDERSON, and PLATT, BB. concurred. Rule absolute. BROMAGE AND ANOTHER V. VAUGHAN (Clerk). Sequestration-Irregularity. Quære-Should a writ of fi. fa. be first issued into the county or diocese in which a parson has a benefice, so as to exhaust his temporal goods there, before issuing a writ of sequestration to take the profits of his benefice? This was a rule obtained to set aside a writ of sequestration, with costs, on the ground of its having been issued irregularly. E. Beavan shewed cause, and cited Pratt v. Hawkins, 15 M. & W. 399; 2 & 3 Vict. c. 39, s. 10; Willes shewed cause. The irregularity comHiggs v. Mortimer, 1 Ex. 711; Prichett v. Bag-plained of is, that there was no writ of fi. fa. issued shaw, 2 L. M. & P. 322. Cur. adv. vult. first into the County of Brecon, where the benefice of the defendant is situate; but that is not absolutely necessary when a sheriff, to a common fi. fa. directed to him, returns nulla bona, and that the defendant is a beneficed clerk, not having any lay fee, the plaintiff may sue out a fi. fa. de bonis ecclesiasticis directed to the bishop of the diocese in which the defendant's benefice is. (Pickard v. Pacton, 1 Sid. 276; Rex v. Powell, 1 M. & W. 321, and cases collected in 2 Chitty's Archbold's Practice, 1135.) 2ndly, That although a fi. fa. issued into Bristol, that there is only a return of nulla bona, without any return that he was a beneficed clergyman anywhere, but that is a mere irregularity only, and waived by the delay which the defendant has made (Warne v. Haddon, 9 Dowl. 960), so that the lapse of time here is a waiver of that objection. And, 3rdly, It is said that an alteration has been made in the writ after it was issued, but that upon the affidavits appears not to be so. 8 Mod. 243, was referred to. POLLOCK, C.B.-In this case a new trial was moved for by Mr. Lloyd. It was a cause tried at Welshpool before my brother Maule. We are of opinion that there ought to be a new trial. It was a case in which there was a plea of the Statute of Limitations, and the question arose whether it was necessary, there appearing but one writ, that the service of that writ should be proved; or from the fact of there being an appearance and a declaration, evidence of the service of the writ might be dispensed with. The Court, I believe, is not entirely unanimous in the view that is to be taken of this question, but we think it quite fit there should be a new trial, with the view that if the question should really arise in point of law, there may be an opportunity of taking the opinion of a Court of Error, or if the fact be that there was a service, the plaintiff may have an opportunity of proving it. Rule absolute for a new trial. Friday, Jan. 30. ANDREWS v. EATON. Arbitrator's enlarging time (by leave of the Court) for making his award, after he has allowed his own time for doing so to expire. Hance shewed cause against a rule obtained for power to the arbitrator in this case to enlarge the time to make his award, the time he had himself appointed for that purpose having expired. Five years had elapsed, and the arbitrator had not made his award. Three of the defendant's witnesses were since dead; and if the reference were now proceeded with, great injustice would be done to the defendant by the delay. In Lambert v. Hutchinson, 2 M. & Gr. 858, the Court refused a similar application after a lapse of three years only. White, contrà.-The defendant himself obtained an appointment to go on with the reference in 1848, and the arbitrator had enlarged the time up to Easter Term, 1850. [PARKE, B.-It was never intended that the Court should exercise the power under such circumstances as these, where there there has been so much delay, but only where great injustice would otherwise be done, or where there has been a mere slip of the arbitrator in allowing the time to expire by inadvertence or accident.] Then the Court will make the other part of the rule absolute, that the judgment should be entered for plaintiff, according to the verdict, or that, at all events, the verdict should be set aside, and the cause tried. POLLOCK, C.B.-The cause must be disposed of, and that would perhaps be the best course, to set aside the verdict, and have the cause tried. Hance. The defendant would, rather than incur that expense again, consent to the time being enlarged for the arbitrator to proceed. Time enlarged, by consent. Lush, in support of the rule.-The creditor is bound, in the first place, to exhaust the temporal goods upon an execution against a clergyman before a writ can be properly issued to seize the profits of his benefice, and the party is presumed to live on his benefice, so that a writ should be first issued into the county or into the diocese in which the benefice is. That has not been done in this case. In Mortimer v. Pigott, 2 Dowl. 615, a party, after a lapse of ten years, during which he had been in custody, was discharged upon application, on the ground that no sci. fa. had issued to revive the judgment upon which the defendant had been taken, the judgment being more than a year and day old. [POLLOCK, C.B. referred to the report of that case in 4 Adol. & E. 363, as differing from 2 Dowl] Blanchenay v. Burt, 4 Q. B. 708, was also in favour of the defendant, and the form of the return to the first writ as given in the precedents is important. This writ issued therefore improvidently if the temporal goods must be exhausted first. The irregularity is admitted on the other side, and there was clearly no waiver by delay. The sequestration issued on the 17th of August last, and this rule nisi was obtained in the Term next following, that is to say, on the 22nd of November; if an application had been made to a learned judge at chambers during the long vacation, he would have referred the application to this Court. (Bacon's Abridgment, tit. "Execution," was cited.) [He was then stopped.] POLLOCK, C.B. This rule must be absolute; it is admitted there is an irregularity, and the question for us, therefore, is, whether the defendant has waived it by his delay in making this application to the Court to set aside the proceedings. The writ of sequestration issued in August, and the rule to shew cause in this case was obtained on the 22nd of November next following. I do not think that is a waiver of the irregularity by lapse of time. PARKE, B.-I am of the same opinion; the irregularity is admitted, and no time was lost in making the application to set it aside; the sequestration issued in vacation, and the defendant applied for and obtained this rule in the following term. If he had gone before a judge at chambers during the vacation, in all probability he would not have interfered. ROE (Public Officer) v. FULLER. Pleading several matters-What pleas allowed. This was a rule calling on the plaintiff to shew cause why he should not be allowed to plead to the POLLOCK, C.B.-In this case, which was a motion action brought by the plaintiff as public officer of a by the Attorney-General for a new trial on the banking company, on a guarantee given by him to ground that there was no insurable interest in them. 1. Non assumpsit. 2. A denial that they Marks, who was an insolvent, and had acquired were, at the time of the action, carrying on business property after he had obtained his discharge, and in co-partnership enabling them to sue by public had insured that, and subsequently the discharge officer; and 3, payment. An application had been was revoked, we are all clearly of opinion that as he made to Martin, B. at chambers, and he had disalwas in possession as the apparent owner, responsible lowed the second plea. to those who were the real owners, he, under Lush shewed cause.-The learned judge at cham-fendant is situate, but I have considerable doubt these circumstances, had clearly an insurable inter-bers properly disallowed the second plea. Why about that at present. However, we need not de ALDERSON, B.-It is admitted there is an irregularity, and I think also that the delay, under the circumstances, was no waiver of it. It may be an irregularity that no writ of fi. fa. had been issued into the diocese in which the benefice of the de FEB. 7, 1852. EXCHEQUER. cide that point, as the other is sufficient to make this rule absolute. PLATT, B. concurred. Jan. 29 and 31. HILL V. PHILIP. Rule absolute. Law of Evidence Amendment Act-Inspection of LAW TIMES REPORTS. EXCHEQUER. BAIL COURT. Referred to the Master to examine the accounts, &c., Thomas Pratt, deceased, and the costs of this application. Bailey, in support. 2001. to be brought into Court within a fortnight to abide his decision, and the costs to be in his discretion. EXCHEQUER CHAMBER. Barrister-at-Law. of the Court? We are of opinion that the plaintiff is bound, according to the practice of the Court, to go on as soon as the injunction is removed. On the present occasion the injunction to stay the trial was very shortly after issue joined: the injunction was dissolved some months afterwards, and the plaintiff immediately gave notice of trial, the injunction being dissolved; on the 12th of June, 1851, he gave notice of trial for the 14th of June, 1851; on the 22nd he Reported by ADAM BITTLESTON, Esq. of the Inner Temple again gave notice of trial on the 2nd of November, but did not go to trial. Probably, independently of these questions of notice of trial being given, it may be that the plaintiff was bound to go on accordThe costs of inspecting documents under the 14 &ing to the practice of the Court, and no doubt when 15 Vict. c. 99, s. 6, are payable by the party he has twice given notice of trial, and twice failed, it seems very unreasonable that he should now say seeking the inspection. will not go to trial because you obtained an injunction to suspend the proceedings for a certain time. We are of opinion, therefore, that the plaintiff must go to trial. Therefore the rule for a nonsuit must be made absolute. If the plaintiff will give a peremptory undertaking to proceed as soon as, according to the practice of the Court he may proceed, the rule will be discharged; if not, it will be made absolute. In this case Martin, B. had made an order for the inspection of certain books, documents, and letters, under the Law of Evidence Amendment Act; a rule had been subsequently obtained, calling on the plaintiff to shew cause why that order should not be rescinded. James, Q.C. now shewed cause.-This was an action against the keeper of a lunatic asylum for improper and unskilful treatment. The declaration also contained a count in trover for certain letters. It was now contended that there was no valid reason why the inspection sought should not be granted. Bovill, contrà, contended that the books required for inspection were kept under the Act of Parlia ment regulating these establishments, 8 & 9 Vict. c. 100, and were of a private and secret character. The question involved the happiness of many families. The Court thought there was no ground for the objection and discharged the rule, but took time to consider the question of costs. Rule discharged. Saturday, Jan. 31.-POLLOCK, C.B. now gave judgment on this latter point.-The question arises as to the costs of inspection; we are of opinion that the costs of inspection ought to be paid by the party seeking for the inspection of the documents; and the costs of this rule will be plaintiff's costs in the cause. HEMINGWAY v. WYNNE. that HILL U. GRINHAM and ANOTHER v. CARD and ANOTHER.— Judgment affirmed on the demurrer; judgment reversed (Cresswell and Williams, JJ. dissentientibus) on the issue on non assumpsit, and a venire de novo awarded. CHALLIS V. DANIEL.-Argument resumed. BAIL Adjourned to Friday, Feb. 13. COURT. Reported by T. W. SAUNDERS, Esq. of the Middle Temple. Barrister-at-Law. Friday, Jan. 30. (Before Mr. Justice ERLE.) REG. V. THE MAYOR AND ASSESSORS OF The mayor and assessors cannot revise the list of In Michaelmas Term, Lush obtained a rule, calling upon the mayor and assessors of the borough of Harwich, to shew cause why a mandamus should not issue, commanding them to hold a court for the purpose of revising, and to revise, the list of persons claiming to have their names inserted upon the burgess-roll. of the County Court at Tunbridge. The plaintiffs were Honeyman applied for a writ of prohibition to the Judge members, and the defendants trustees, of a friendly society, established and enrolled in 1836. By the 38th rule of the society, a reserved fund was established, to be invested in the names of four trustees, and to be under their control. It appeared that an application had been made by certain of they were not justified in such a step by the rules of the society. the members to divide this fund; but the trustees thought On the 30th of July, 1850, a general meeting of the members was held, when a resolution was passed that the 38th rule should be expunged, and the fund divided between the members; but a notice had been served on the trustees, by certain other members who did not agree to the resolution, not to part with the funds. On the 27th of November a plaint out of the County Court was served, The Court having taken time to consider whether calling on the defendants to appear on the 11th of December, and shew cause why they should not pay over It appeared that the borough of Harwich is divided a new trial should be had in this case, POLLOCK, C.B. said,-This was a motion for a the reserved fund as required by the rules of the society the jurisdiction of the judge of the County Court at the new trial by Mr. Knowles, and we are of opinion pursuant to the resolution. An objection was made to into two wards, namely, St. Nicholas and Doverthat there ought to be no rule. The motion was hearing, but he overruled it, and the plaintiffs recovered court, each being a parish, and each having two made on the grounds of surprise, and that the judgment with the costs of the suit. The first objection overseers and two churchwardens. On the 11th of The learned now relied upon was that the Friendly Societies Act, October last, the mayor and assessors held a court verdict was against the evidence. judge before whom the cause was tried is perfectly 13 & 14 Vict. c. 115, s. 22, did not apply to this society. for the purpose of revising the burgess lists. Upon satisfied with the verdict; and in respect to the It had not been established under that Act, but long pre- these lists being presented for revision, it was disvious to it, and the question here was not one requiring covered that they were signed only by the two overgrounds of surprise, the matter stands thus:he decision of a Court of Equity, and the earlier Acts the cause was tried, and apparently on gave the County Courts no jurisdiction. The judge depended seers, and not by either of the churchwardens; privilege; neither was it sufficiently signed under sec. 15 of the 5 & 6 Wm. 4, Occasion, the first trial, there was some ground of on the 46th section of the 13 & 14 Vict. c. 115; but here whereupon it was objected that these lists were insurprise the materials, however, were obtained, was neither an exemption_nor and a second trial took place, and they were before shewn that this society did not grant assurances beyond c. 76, and that the mayor and assessors had no Rule msi granted. a second jury in a cross action. That jury, with the the limits of that Act. The rules point out a more easy power to revise them. Upon this the court was adThe list of claimants by arbitration. full concurrence of the learned judge who tried the and efficacious method of settling the question, namely, journed to consider the question; and on reassembling ENGLAND. BOYCE.-White shewed cause against a they held that the objection was valid, and they reLush, contrà. fused to revise the lists. cause, came to the same conclusion as the first jury had come to without these fresh materials. Mr. Knowles, rule to enlarge a peremptory undertaking. Rule absolute on payment of costs of the rule, if not (which is made out by the town clerk) being presented to the Court, they also held that as they had who made the application, applied for a new trial in paid in a week; rule discharged. both cases: for a new trial in the second, because TEDDER v. PERKINS.-Baddeley moved for an attach-no power to revise the original burgess lists, they could the verdict was against the evidence; and for a new trial in the first, on the ground of surprise in that ment for not obeying an award. case; the fact being, that the parties had an opportunity on the second occasion of laying before another jury all the grounds of surprise which occurred in respect of the first. In reality, he has had the full benefit that would have been granted to him if on the first occasion he had moved on the ground of. surprise, or we had made the rule absolute, and he had tried the cause over again. That really is the state of the case. The consequence is this, that with respect to the first trial, he has had the fullest benefit of making his application and having that rule made absolute, and the rule disposed of to the full satis. faction of the learned judge who tried the cause. there is not to be an end of litigation under these circumstances we know not really where we are to look for that determination, and it is matter of interest to the public that such litigation should cease. We think, therefore, that there ought to be no rule. Rule refused. If DOBSON V. BROCKLEBANK. Injunction-Practice. Semble, that where an injunction has been obtained to stay proceedings at law, it is the plaintiff's duty to proceed as soon as the injunction is removed. POLLOCK, C.B. said-In this case a question arose whether the effect of an injunction obtained by the defendant to prevent the trial of a cause is to be considered as such an impediment to the proceedings of the plaintiff, that he is thereby relieved from sending down the cause for trial, or whether it is merely an interruption that, as soon as the injunction is removed, ceases, and it becomes the duty of the plaintiff to go on to trial according to the practice Saturday, Jan. 31. BHEAR U. HARRADINE. BELL V. JONES.-Judgment on a sci. fa. were right or not, this Court would not now interfere; that by the 7 Wm. 4, and 1 Vict. c. 78, s. 6, the burgess-roll of the preceding year became the burgess-roll for the present year, in consequence of the defective revision, and that if the list of claimants were to be set up as the burgess-roll, those voters who were already on the old burgess-roll would be disfranchised, and the roll would consist alone of the would also draw down this consequence, that those few claimants whose claims might be allowed, which councillors who derived their qualification from being on the old burgess-roll, would be disqualified from holding office. That the cases of R. v. Dover, 11 Q.B.; and R. v. Lichfield, 1 Q.B. 453, were not in point; that, in fact, the title of the claimants failed, as there was no burgess-roll before the mayor upon which they could be put. James, Q.C. and Lush, contrà, argued that it was not necessary for the Court to decide upon what roll the claimants should be placed; it was sufficient for the Court to order the list of claimants to be revised, leaving it to the mayor and assessors to determine that question, and to return, if they chose, that there is no burgess-roll upon which the claimants could be placed; that the claimants ought not to be prejudiced by an error in another list, since their own list was valid; that it is no answer to a demand to revise |