Williams v. Wilcox and another, 8 Adol. & Ellis, 335, 336.

unlawful destruction of that important article of consumption. That statute, therefore, being pointed at another mischief, might leave any question of nuisance by obstruction to the passage of boats exactly as it stood at common law. But the same remark does not apply to 4 statute 25 Edw. III. c. 4. That begins by reciting that the common passage of boats and ships in the great rivers of England is oftentimes annoyed by the inhansing (a mistranslation of the word lever for levying or setting up 1) of gorces, mills, weirs, stanks, stakes, and kiddles, and then provides for the utter destruction of all such as have been levied and set up in the time of Edward I. and after. It further directs that writs shall be sent to the sheriffs of the places where need shall be, to survey and inquire, and to do thereof execution; and also the justices shall be thereupon assigned at all times that shall be needful. It is clear, we think, that, in any criminal proceeding for the demolition of this weir which had been instituted immediately after the passing of this statute, it would have been a sufficient defence to have shown its erection before the time of Edward I.; and, considering the concise language of statutes of that early period, we think the statute would equally have been an answer in any civil proceeding at the suit of a party injured. Assuming the weir to have been illegally erected before the date of Magna Charta, it is not unreasonable to suppose that a sort of compromise was come to; similar nuisances were probably very numerous; but they were probably, many of them, of long standing; it may have been impossible to procure, or it may [* 336] well have been thought unreasonable to insist on, an act which should direct those to be abated which had acquired the sanction of time; and a line was therefore drawn, which, preventing an increase of the nuisance for the future, and abating it in all the instances which commenced within a given period, impliedly legalised those which could be traced to an earlier period. This appears to us the proper effect to be attributed to the statute; and, if it be, it disposes of any difference between a criminal and civil proceeding. The earlier weirs were not merely protected against the specific measures mentioned in the Act, but rendered absolutely legal. If this would have been a good answer immediately after the Act passed, it is at least equally good

*

1 Corrected in the translation of statute 45 Edw. III. c. 2 (recital).

Williams v. Wilcox and another, 8 Adol. & Ellis, 336, 337.

now; and therefore, of statute 45 Edw. III. c. 2, and statute 1 Hen. IV. c. 12, it is unnecessary to say more than that they do not at all weaken the defence which the defendants have under the former statute.

We are of opinion, therefore, that there is no ground for arresting the judgment or entering a verdict for the defendants; and the conclusion to which we have come on these points decides, of course, that the learned Judge was quite right in receiving evidence of the antiquity of the weir.

A single point, however, still remains to be mentioned, on which the defendants claim a new trial.

In order to establish the antiquity of the weir, the plaintiff tendered in evidence what purported to be a copy of an ancient grant found in a chartulary of Haghmon Abbey; the single objection now relied on against its reception is, that no search was proved to have been made for the original. The note of the learned Judge is very specific as to the objections made at the trial,* and his memory clear as to what then occurred; [* 337] but he has no minute or recollection of this point having been pressed; and it is an objection so much upon the surface, that, if brought clearly to his notice, it is scarcely conceivable but that it must have prevailed; indeed we think that it must have been acquiesced in by the counsel on the other side. We do not doubt that it was in fact made; but, as the whole class of that evidence, of which this document formed a single item, was also objected to, and the attention of the learned Judge was naturally directed to that more general and important objection, it is probable that this was not so made as to attract his notice. In all cases, and especially in one so circumstanced as this, it is the business of the counsel to take care that the Judge's attention is drawn to any objection on which he intends afterwards to rely. Justice requires this, not so much to the Judge, as to the opposite party, who may be willing, as in the present case would probably have been done, rather to waive the benefit of the evidence than put his verdict in peril on the issue of the objection. If, by inadvertence, this was not done at the trial, we think we ought not, either upon general principles or with a view to the particular circumstances of this case, to allow the objection now to prevail. The admitted document was but one of many to prove what in the end was unquestionable and unquestioned, the very great

Williams v. Wilcox and another, 8 Adol. & Ellis, 337. —Notes.

antiquity of the weir; its admission, therefore, occasioned no injustice; its rejection could not and ought not to have varied the verdict.

The rule, therefore, on all points will be discharged.

ENGLISH NOTES.

Rule discharged.

As to the right of erecting or heightening a weir by a riparian proprietor in a non-navigable river, see notes to Nos. 1 & 2 of "Water," p. 408, ante.

The above judgment of Lord DENMAN is cited by MALINS, V.-C., in Attorney-General v. Earl of Lonsdale (1868), L. R. 7 Eq. 377, 389, 38 L. J. Ch. 335, 343, 20 L. T. 64, 17 W. R. 219, where the defendant was held not entitled to erect a jetty interfering with the flow of the tide on the river Eden a few miles below Carlisle, although he was entitled to maintain defensive works which had been above twenty years in existence.

AMERICAN NOTES.

The obstruction of navigable highways or of rights of fishery by weirs is not so important in America, nor of such frequent occurrence, as their obstruction by wharves, dams, or bridges. This subject, as affected by the legislation of Congress and the customs and statutes of the different American states, is fully discussed in the American notes to "River-Riparian Owner," 23 R. C. 160, 184; South Carolina Steamboat Co. v. Wilmington, Columbia, & Augusta R. Co. 46 South Carolina, 327, 57 American State Reports, 688, and note; Gould on Waters (3d ed.), ss. 21–24, 93, 121–140, 167–181, 189.

No. 1.- Allen v.

Maddock, 11 Moore's P. C. C. 427.- Bule.

WILL.

[See also "ACCELERATION," 1 R. C. 194 et seq.; "ADMINISTRATION," " 2 R. C. 56 et seq.; "AMBIGUITY," 2 R. C. 707 et seq.; "ANNUITY," 3 R. C. 151 et seq.; CONFLICT OF LAWS," No. 6, 5 R. C. 771 et seq.; " ESTATE," 10 R. C. 673 et seq., passim; "EXECUTOR," 12 R. C. 1 et seq.; "INTERPRETATION," Nos. 1 & 2, 14 R. C. 577 et seq.; No. 9, Ib. 724 et seq.; "PERPETUITIES," 21 R. C. 100 et seq.; "PoWER," 21 R. C. 349 et seq., passim; "REAL ESTATE," 22 R. C. 837 et seq.; "REPUGNANCY," 23 R. C. 54 et seq.; "SETTLED LAND ACTS," and "SETTLEMENT," 24 R. C. 42 et seq., passim; "TENANT FOR LIFE," p. 9 et seq., ante.]

AN unattested, or imperfectly attested paper may be incorporated in a will by reference, if the terms of the will, assisted (if necessary) by the surrounding circumstances, are sufficient to identify the paper, and to show the intention of giving effect to it.

Allen v. Maddock.1

11 Moore's P. C. C. 427-462.

Will (intended). - Unattested Paper. - Incorporation in Subsequent duly Attested Codicil.

An unattested paper, which would have been incorporated in an [427] attested will or codicil, executed according to the Statute of Frauds, is

1 Present: The Right Hon. Dr. LUSHINGTON, the Right Hon. T. PEMBERton Leigh, the Right Hon. Sir EDWARD RYAN, and the Right Hon. Sir CRESswell Cresswell.

now in the same manner incorporated, if the will or codicil is executed according to the requirements of the Wills Act, 1 Vict. c. 26, s. 9.

Where there is a reference in a duly executed testamentary instrument, to another testamentary instrument, imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence, and such parol evidence is not excluded by 1 Vict. c. 26.

If the parol evidence satisfactorily prove that, in the existing circumstances, there is no doubt as to the instrument referred to, it is no answer, that by possibility, circumstances might have existed in which the instrument could not have been identified.

A married woman, having power under a settlement to make a will, in the year 1851 made a testamentary instrument, in her own handwriting, which she intended to operate as a will, but which was not attested according to the requirements of 1 Vict. c. 26, s. 9. In 1856 she duly executed a codicil, which was headed, "This is a codicil to my last will and testament." This codicil contained no reference to the testamentary paper of 1851, which was not produced at the time the codicil was executed, but was found at her death in a trunk in a room in the deceased's residence, enclosed in a sealed envelope, on which was endorsed "Mrs. Anne Foote's will." The codicil was found in a drawer in her bedroom. No other will or testamentary paper was found. Held (affirming the decree of the Prerogative Court) :—

First, that as there was a distinct reference in the codicil to a "last will and testament," and as no other will had been found, the testamentary paper of 1851 was, by parol evidence, sufficiently identified as the "last will" referred to by the codicil of 1856.

Secondly, that, though informally executed, the testamentary paper of 1851 was incorporated with, and made valid by, the duly executed codicil of 1856, and probate granted to both papers as together containing the last will and codicil of the testatrix.

The question in this appeal was whether by the follow[*428] ing words, in a codicil, made in 1856, "This is a codicil to my last will and testament," and the circumstances of the case, a testamentary paper made in 1851, and intended by the testatrix as her will, but which was informal, not being attested as required by the Wills Act, 1 Vict. c. 26, s. 9, was sufficiently referred to and identified, as to become incorporated, and acquire validity from the duly attested codicil.

The appeal arose out of a cause instituted in the Prerogative Court of Canterbury, of proving in solemn form of law the last will and testament, with a codicil thereto, of Anne Allen (formerly Foote, widow), the wife of the appellant, promoted by the respondent, one of the executors named in the will, against the appellant. The will, which was in the handwriting of the deceased, was dated