taken and the control he has exercised, under it, he must be considered as a proprietor. I never can hold that a party employed as the plaintiff was, by a person acting as the defendant has done, shall be bound to ascertain with nicety where the legal estate lies, to balance the equities, and to find out who has in the greatest degree the beneficial interest in the property. If he finds a party invested with such an authority as was given by this deed, and adopting it by his acts, I think he is justified in treating him as a proprietor; and that the defendant is so, under the statute, for the present purpose. In this case PARKE J. I am of the same opinion. several objections have been taken. The first is, that the plaintiff was not duly appointed clerk, because he had been appointed at a previous meeting to that alleged in the special counts in the declaration, viz. in the year 1829. That objection, however, has been disposed of, and it is clear in my mind that the plaintiff is entitled to recover under the general counts in the declaration, provided the defendant be a proprietor: if he is the clerk to the commissioners, whether he was appointed at a meeting in 1829 or the one in 1830, is wholly immaterial. There is another objection, which applies only to the meeting of the 3d of February 1830, viz. that that meeting was not duly advertised in the Northampton and Cambridge papers. It does not appear to me to be necessary under this act of parliament that there should be an advertisement in every paper published at those places; but supposing it was requisite, I am not satisfied, looking at the title of the paper, that this paper printed and published at Cambridge is a Cambridge paper within the meaning of the acts of parliament. The plaintiff, therefore, is the clerk to the com 1833. TIBBITS against YORKE. 1833. TIBBITS against YORKE. commissioners; and they having adjudicated that he is entitled to a sum of money to be paid by the proprietor of the tolls in question, the point comes to be: Who is the proprietor of those tolls? Now with respect to the title to the tolls, it appears that they were vested in Mrs. Squire, subject to an annuity of 1007. payable to Mrs. Cheyne: that in 1778, there was a grant of annuity made by Mrs. Squire and Mrs. Cheyne to two annuitants, Mr. Sprot and Mr. Smith; and, in order to secure these annuities, there is a grant of all Squire's and Cheyne's interest in the tolls to Mr. Smithson for a term of lives, and of 99 years. The effect of that deed would be that the legal estate vested in Smithson, and that if the plaintiff had had to bring an action against the owner of the legal estate, his remedy would have been against Smithson, and not against the defendant; but it appears to me quite clear that the meaning of the act of parliament is not that. Supposing that no other deed had been executed but this grant of annuities, and that the trustee had not taken possession for the term granted to him, then if Mrs. Squire and Mrs. Cheyne had still continued in receipt of the profits of the navigation, doing all the repairs and paying all the expenses, they, notwithstanding the existence of the mortgage charge, would unquestionably have been the proprietors of the navigation within the act, 34 G. 3. c. 85. They would have been the persons in the receipt of the rents and profits, and one application of these is to do the repairs of the navigation, and another application, equally necessary, to pay the expenses of the clerk appointed under the navigation acts. It being then clear that Mrs. Squire and Mrs. Cheyne, in the case supposed, would be the responsible persons, notwithstanding the grant of annuities, which is is merely a charge on the profits affecting the legal VOL. V. S s trustees 1833. TIBBITS against YORKE. 1833. TIBBITS against YORKE. trustees in the same situation as Mrs. Squire and Mrs. Cheyne would have been in, if they had continued in possession; and the whole estate which they had, subject to the mortgage charge, is vested in the defendant, the defendant being the survivor of these trustees. No other person can be said to have a distinct equitable title to the estate. He has to receive the profits to pay off the incumbrances, to enter into such contract as he thinks fit with the annuitants, and to pay the different creditors: the effect of the deed is to place him, clear of these liabilities, in the same situation as Mrs. Squire and Mrs. Cheyne would have stood in, supposing the deed had never been executed at all. We cannot attend to the circumstance of an outstanding legal estate being in another person in trust to secure the annuities. It appears to me, therefore, that the defendant must be treated as the proprietor of these tolls, and if so, that this action is maintainable. TAUNTON J. I am of the same opinion: and, my brother Parke having gone so minutely into the different conveyances, I do not think it necessary to enter particularly into the intricacies of these deeds. The act of parliament provides that the clerk shall be paid by the proprietor of the tolls; and I am of opinion that the defendant may be treated as the proprietor so as to be liable in this action, because he has held himself out to the world as such, and has done various acts which no other person but a proprietor was competent to do. For instance, he has stated that he would only pay for such repairs as he himself should order to be done, thus assuming himself to be the person who had the power of controlling the expenditure, and directing the repairs. He has also appointed a person to collect the tolls; tolls; he has checked the accounts of that person, and the collector under his authority has paid the current expenses of the navigation. I do not mean to say that these various acts would, at all events, make him liable as a proprietor under the act; but I think they throw upon him the burthen of proving that, notwithstanding he has been the visible and ostensible proprietor, yet the real proprietor is some other person. Has he done this? The only other person whom there is any pretence for calling the proprietor is the representative of Smithson, under the deeds of 1778; but, although the legal estate passed to Smithson for the purpose of securing the annuities mentioned in the deed, still those annuities were only a charge upon the estate: the legal estate was not given to Smithson in the character of proprietor of the navigation in the sense in which the word "proprietor" appears to me to be used in the act, but merely to secure these annuities. I think, therefore, the legal title outstanding in Smithson's representative is no bar to this defendant being considered a proprietor within the act. Then, by the deed of 1782, the whole interest is conveyed to the defendant and three other persons whom he has survived, subject to the terms granted to Smithson; every thing except that which was outstanding in Smithson is conveyed to them, and the trusts are to pay the creditors, and defray the expenses of the navigation and the general charges incident thereto. We are not running counter to the declared objects of that deed in saying that the defendant is liable to the charge now in question. And, looking at all the deeds, there is nothing to shew that, although Mr. Yorke may have been the ostensible proprietor, some other person remains concealed, who 1833. TIBBITS against YORKE. |