1832. TRAFFORD V. the river and brook have been raised without any necessity, and not in self-defence against the consequences of the construction of the embankment and aqueduct; or, at all events, that the banks have been The KING. raised by Defendants to an unreasonable and unnecessary height. And if these facts are left in doubt upon the special verdict, we think no judgment can be given against the Defendants. Upon the point firstly above suggested, there appears no doubt but that at common law the landholders would have the right to raise the banks of the river and brook from time to time, as it became necessary, upon their own lands, so as to confine the flood-water within the banks, and to prevent it from overflowing their own lands; with this single restriction, that they did not thereby occasion any injury to the lands or property of other persons. And if this right had actually been exercised and enjoyed by them before the passing of the act, then the construction of the aqueduct and embankment may be considered as having taken place subject to the enjoyment of such rights as the landholders possessed at the time of passing the act, unless so far as the act of parliament may have restrained the exercise of such rights. It appears, therefore, to us to be indispensable, in order to determine whether the acts of the Defendants stated in the indictment are wrongful or not, that the jury should find such facts as will enable us to say with certainty, whether, before the making of the canal and embankment, there was any exercise by the landowners of the right of raising and heightening the banks from time to time, as occasion required, so as to confine the water at all times to the ordinary channel, and prevent it in times of flood from overflowing the banks; or, whether the passage over the banks in times of flood was the usual and ordinary course. 1832. TRAFFORD But the present special verdict leaves the commencement of the enjoyment of this right in complete uncertainty. It states only that there "now are" on each The KING. side of the river and brook, artificial banks called "fenders," which have from time to time been raised, as occasion has required. It finds, indeed, in one part, that these banks are not raised higher than is necessary, a fact very strongly in favour of the Defendants. But it gives no date whatever to the origin of these acts of enjoyment on the part of the owners of land adjacent to the river. Upon such a finding we do not feel ourselves competent to say whether the acts complained of in the indictment amount to a nuisance or not. Again, the jury find, that before the banks of the river and brook were raised, the water of the river and brook was frequently penned back, and flowed over the north bank, by a track or course which is described in the verdict, and which is stated to fall into the river again at a place called Ermston, about two miles below the three arches. But it nowhere appears whether the flood-water was carried in that course before the aqueduct was made; nor whether it had been so carried for such a period of years over the lands of different persons, as to constitute a right of watercourse in time of flood in the direction described by the special verdict. But in order to establish the charge against the Defendants, it was essential to shew that by their raising and heightening the banks of the river and brook, they prevented the water in time of flood from flowing in this particular course. We ought, therefore, to see upon the face of the verdict, that there was an existing right of this course for the flood water over the lands described in the special verdict, before we hold the Defendants guilty of the offence charged. Again, upon the second ground above suggested, we think this special verdict deficient. The special verdict leaves it questionable whether the nuisance complained of, i. e. the danger to the aqueduct and the canal, is not attributable in some degree at least, if not entirely to the act of the owners of the canal. The special verdict states in terms, that since the making of the canal, the water of the river has at different times flowed over the banks much higher up the within mentioned river than the point of its junction with the brook: and then proceeds to state an instance of damage done in 1806, for which the commissioners named in the act of parliament awarded compensation on account of the insufficiency of the outlets under the canal embankments. Again, in the statement made of the levels of the river above the aqueduct, and of the fall immediately below, an inference at least is afforded that the embankment and the canal have contributed to the penning back the water, thus creating a necessity and justifiable ground for raising and heightening the banks. Without, however, in any manner asserting that such has been the case, or that such is the necessary inference from the facts stated, we only observe that this special verdict does not state with sufficient certainty what is the real cause of the penning back of the water in time of flood, nor whether the raising and heightening of the banks by the Defendants had a legal and justifiable commencement, nor what is the rightful course of the flood water, nor generally does it lay before us such facts, as will enable us to say whether the acts done by the Defendants are lawful or not, or to give any judgment, satisfactory to ourselves, that should bind the rights of the contending parties. Under these circumstances, the only course we can pursue is, to reverse the judgment which has been given for the crown, and to award a venire de novo; and if another special verdict should be found, we think it would be desirable that it should contain an express finding 1832. TRAFFORD V. The KING. 1832. TRAFFORD V. The KING. finding of the jury upon the several points to which we have above adverted, rather than the statement of facts from which the finding of the jury is only to be inferred. Venire de novo awarded. Jan. 30. Where a an action against the drawer, presentment to the acceptor must be (IN THE EXCHEQUER CHAMBER.) GIBB V. MATHER and Others. THE declaration stated that the Defendant below, on the 27th of September 1828, at Liverpool, that is to say, at Preston, in the county of Lancaster, according to the usage and custom of merchants, made and drew drawee accepts it payable at a certain bill of exchange in writing, and then and there that place, in directed the said bill of exchange to Messrs. Chapman and Fairclough, and then and there required the said Messrs. Chapman and Fairclough four months after the date thereof to pay to the order of the Defendant below, in at that place London, 175l. 10s. value received in timber; which bill the said Messrs. Chapman and Fairclough afterwards, to wit, on, &c. at, &c. accepted according to the said custom and usage of merchants, payable at Messrs. Jones, Lloyd, and Co., bankers, London. And the Defendant below, to whose order the said sum of money in the bill of exchange specified was to be paid, afterwards, to wit, on, &c. at, &c. by one John Kempster, then and there being the agent of the Defendant below in that behalf, indorsed the said bill of exchange according to the said custom and usage of merchants, and then and there delivered the said bill of exchange, so indorsed, to one John M'Killop ; proved. and and the said J. M'Killop afterwards, to wit, on, &c. at, &c. duly indorsed the said bill of exchange, and then and there delivered the same, so indorsed as aforesaid, to the Plaintiffs below. And the Plaintiffs below averred that afterwards, to wit, on, &c. at Liverpool, &c. the said bill was shewn and presented to the said Messrs. Chapman and Fairclough, upon whom the said bili was drawn, for payment thereof; and the said Messrs. Chapman and Fairclough were then and there required to pay the same; but that the said Messrs. Chapman and Fairclough did not, when the said bill was so shewn and presented to them for payment as aforesaid, or at any other time, pay the same, or any part thereof, but on the contrary thereof, then and there wholly refused so to do, and therein wholly failed and made default; of which said several premises the Defendant below afterwards, to wit, on, &c. at, &c. had notice; by reason whereof, and by force of the said custom and usage of merchants, the Defendant below then and there became liable to pay to the Plaintiffs below the said sum of money in the said bill mentioned, when he, the Defendant below, should be thereunto afterwards requested; and being so liable, the Defendant below, in consideration thereof, afterwards, to wit, on, &c. at, &c. undertook, and then and there faithfully promised the Plaintiffs below, to pay them the said sum of money in the said bill mentioned, when he, the Defendant below, should be thereunto afterwards requested. In a second count it was alleged that the acceptors were, at Liverpool, required to pay the bill according to the tenor and effect of the bill and of the indorsements thereon; and In a third, that the bill was, at Liverpool, in due manner shewn and presented to the acceptors. At the trial before J. Parke J., last Lancaster assizes, 1832. GIBB V. MATHER. the |
