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who instituted proceedings, and I do not think the unjust that Nash should be annexed to the Union, as conviction can stand if steps were taken in proper it had never had any paupers, and that if the guartime to quash it. The other question is whether the dians sought to enforce their order they would be put application was made in time within the Act of Geo. 2. to great expense, and would be unable to obtain a It is true that if the application was made on the distress warrant to enforce payment, as the magisTuesday when the hearing took place before the Judge, trates had a discretion whether they would issue their it would not be in time, but there is nothing in the warrant or not, and he had reason to know they Act to say that that day would not be in time for the would exercise this discretion in his favour. hearing ; and I think that the application was made The guardians having notwithstanding applied to on the Saturday and only heard on the Tuesday.

the Justices to issue their distress warrant under the

2 & 3 Vict. c. 84, Mr. Carne appeared on the hearing MELLOP, J., concurred.

and opposed the application, contending that it was Rule absolute.

extremely unjust that Nash should be annexed to the Q. B.

Union, and that he should be burdened with the rates, } REGINA v. BOTELER. 1 FEB. 1864,

but not alleging that it was not legally annexed, nor

urging any other reason why the warrant should not Justices' Warrant under 2 & 3 Vict. c. 84-issue.

The magistrates, after hearing Mr. Carne, Discretion of JusticesExtra-parochial Place refused to issue their warrant, adding, at Mr. Carne’s - Annexing to Union—20 Vict. c. 19. suggestion, “in the exercise of our discretion.” The

present rule was consequently obtained to compel them 'An extra-parochial place was by an order of the Poor to issue their warrant. Law Board duly annered to a Union. A contribution

The 2 & 3 Vict. c. 84, s. 1, under which they are order having been made by the guardians of the Union empowered to issue their warrant, provides that “in upon C, the sole owner of this extra-parochial place, and every case in which any contribution by overseers or the amount not having been paid, the guardians applied other officers of any parish of moneys required by the to Justices under the 2 & 3 Vict. c. 84, for a distress board of guardians, or persons acting as guardians for warrant to enforce payment. At the hearing before such parish or for any Union which shall include such the Justices, C contended that the order annexing the parish for the performance of their duties, shall be in extra-parochial place to the Union was unjust, but arrear, it shall be lawful for any two Justices acting he admitted that it was legally annexed, and urged no

within the district wherein such parish shall be situate other reason why he should not pay. The Justices,

... to summon the said overseer or other officers thercupon, refused to issue their warrant, adding, at to show cause

why such contribution has not C's suggestion, in the exercise of our discretion :"

been paid, and after hearing the complaint ..... if Held, that the discretion given to the Justices by the the Justices at such sessions shall think fit, by warrant Act was a "legal" discretion, and that, as the magis. under their hands and seals to cause the amount of the trates had not acted in the exercise of such a discretion, contribution so in arrear to be levied and recovered.” the Court would compel them to issue their warrant.

Giffard showed cause against the rule. This case came on for argument upon a rule obtained The words used in the 2 & 3 Vict. c. 84, under by Irish calling on the defendants to show cause why which this application was made to the Justices, are, they should not issue their warrant to levy by distress “It shall be lawful for any two Justices . . . . . if the sum of 141. 11s., being the amount ordered to be they shall think fit,” to cause the amount of the con. paid by C. N. Carne, by a contribution order of the tribution in arrear to be levied. It is clear, therefore, guardians of the B Union. At the time of the passing that the Justices had a discretion whether they would of the 20 Vict. c. 19, there was an extra-parochial issue their warrant or not; and as they have exercised place called “Nash,” containing only a few hundred that discretion, this Court will not enter into the acres, of which Mr. Carne was the sole owner. By an question whether they have exercised it wisely. The order of the Poor Law Board, made in 1862, Nash was terms of the rule are not that the Justices should annexed to the B Union, and the guardians of that “hear and determine," but if this rule is made absoUnion accordingly made an order upon Nash for con- lute, they will be compelled without any discretion to tribution to the Union expenses. This order Carne issue their warrant. refused to obey, and the Justices having declined to enforce it by distress warrant, the Court of Queen's Lush, Q.C., and Poland, in support of the rule. Bench made absolute a rule to compel them to. (See What the magistrates have here called a discretion Regina v. Boteler, 32 L. J. M, C. 91, where the facts was a determination not to exercise the powers given are fully stated; also Overseer of Staple Inn v. Holborn by the statute, because they considered the provisions Union, 32 L. J. M. C. 181; 2 N. R. 331.) After of the Act under which this place was annexed to the this decision the guardians made another contribu- Union unjust. The discretion given by the Act is a tion order on Mr. Carne, who thereupon wrote to legal discretion, and does not empower the Justices to the guardians stating that he considered it extremely act or not, according to their mere arbitrary will or


do so.

caprice. Lord Coke thus defines discretion :-"Dis that they have a discretion. But if the facts amount cretion is a science or understanding to discern between to this, that the Justices say, “ Although we think it falsity and truth, between wrong and right, between fit on every legal ground, we will not issue the shadow and substance, between equity and colourable warrant," then they have exercised all the discretion glosses and pretences, and not to do according to their they were entitled to, and may be compelled to issue private wills and affections ; for, as one saith, talis the warrant. My only doubt has been, whether the discretio discretionem confundit,"

facts do really amount to that. Rooke's Case, 5 Rep. 100.

MELLOR, J.-I agree with my Lord as to the true Where, therefore, it is manifest that the case was

result of the facts, and I think it would be a very within the purview of the Act, and that there was no

mischievous example if we were not to make this rule ground brought before the magistrates on which they

absolute.. could properly, in the exercise of their discretion, refuse

Rule absolute with costs, to issue their warrant, this Court will compel them to

Q. B.

BENNISON v. CARTWRIGHT. (COCKBURN, C.J.-But the difficulty is, can we say 2 Feb. 1864. to the Justices—“You shall do it,” if the Act gives EasementForty years user—“ Acquiescence in them a discretion, even though they have not properly exercised it?]

or Submission to" an Interruption-Action The intention of the statute was to enable the Jus brought more than a year after actual enjoy tices to do by warrant what this Court before did by ment has ceased2 & 3 Will. 4, c. 71, $e. mandamus ; and whatever would not be an answer to a 2 & 4. mandamus, is no answer before the Justices. They referred to

To an action of trespass for breaking and entering Newbould v. Coltman, 6 Exch. 189.

plaintiff's garden, the defendent pleaded a user as of

right for forty years of a privilege of entering and pass. COCKBURN, C.J.-We have laid down in more than ing over the said garden. At the trial it was proved one case that where magistrates have a discretionary that the defendant had exercised, as of right, the said power, this Court will not order them to act, when privilege during a period of more than forty years, they have exercised their discretion, but it is clear on

up to February, 1861. The trespass in respect of the facts, that the Justices have not exercised any which the action was brought, was committed on discretion which can be considered as the discretion the 3rd of February, 1863, and the action was como which, in point of law, they were justified in exer- menced on the 10th of February, 1863. From February, cising. This extra-parochial place having been made 1861, up to the commencement of the action, the depart of the Union, it became liable by law contri- fendant was forcibly prevented by the plaintif from bute its share to the general expenditure of the Union, enjoying his easement; but during the earlier part of and there can be no doubt that the magistrates ought such interruption, and up to a period less than twelve to have issued this warrant. It is clear that the months before the commencement of the action, the reason why they did not do so was because they were defendant was in correspondence with the plaintif, invited to exercise their jurisdiction in a matter which denying the plaintiff's right to obstruct him, and seekit is admitted on all hands was not a matter for their ing to negotiate a settlement of their respective claims. discretion. They went on the ground that the annexa

The Judge, having left to the jury the question whether tion of this place to the Union, or in other words, the

or not the defendant had acquiesced in or submitted operation of the Act was unjust. It is clear they had tothe interruption for the space of a year, within no power to enter into that question, and it seems to the meaning of section 4 of the Prescription Act, the jury me to amount to their saying, “We know that on found a verdict for the defendant, saying that he had not all other grounds we ought to issue the warrant, but

so acquiesced:we take upon ourselves to say that the law is unjust, Held, 1st, that the Judge was right in leaving the and therefore we will not issue it.” All the authori- question of acquiescence or non-acquiescence to the jury; ties show that this is not such a discretion as they are and that the bringing of an action or suit is not essential entitled to exercise. We should be setting a very bad to the proof of non-acquiescence, but it may be proved by example if we were to hold that they could illegally evidence of any acts showing a resistance by the claimant exercise a discretion on such a ground as this, and there against the obstruction of his casement. fore this rule must be made absolute with costs.

2ndly, that the defendant was entitled to avail himself BLACKBURN, J.-I am of the same opinion. My of his forty years user, although he had not exercised only difficulty is what, on the affidavits, we are to con

any actual enjoyment of the easement during a period sider to be the facts ? I agree that where Justices have of more than a year immediately preceding the coma discretion, the proper form of remedy is not to apply mencement of the suit. for a warrant, but to apply for a mandamus to compel DECLARATION.—1st count, in trespass for breaking them to exercise their jurisdiction. It is clear here and entering plaintiff's garden, and breaking a hole in

the door of the said garden ; 2nd count, for breaking During the remainder of the year 1862 the defendant down and destroying a part of the wall of the several times sought to enter the garden in exercise of plaintiff's.

his alleged right, but was always forcibly prevented Pleas : Ist, not guilty ; 2nd, not possessed ; 3rd, that from doing so ; and on the 3rd of January he attempted one Green was possessed of a cottage and yard, with a to effect a forcible entrance, but was prevented by privy standing, and being upon the said yard, and superior force employed by the plaintiff. adjoining the said garden of the plaintiff's, and that On the 3rd of February he succeeded in entering the occupiers of the said cottage, yard, and privy, for the garden and pulled down part of the wall which twenty years before this suit enjoyed as of right, and had been built by the plaintiff; but the plaintiff, without interruption, the privilege of going from a immediately he became aware of what the defendant certain public highway over the said garden to the said was doing, removed him from the garden by force, privy, and from the privy to and over the garden to and on the 10th of February, 1864, the writ was the highway, at all reasonable times, for the purpose of issued in the present action in respect of the acts carrying away from time to time the soil in the said committed by the defendant on the 3rd of January privy, for the niore convenientoccupation of the said yard and the 3rd of February. and privy, and that defendant, being Green's servant, Upon these facts, the learned Judge left the follow. committed the alleged trespasses in the proper exercise ing questions to the jury :—1st. Was there a user as of of the privilege aforesaid, and doing no unnecessary right for forty years ? 2nd. Was there a user as of damage ; 4th, a similar plea, substituting forty years right for twenty years ? 3rd. Was the interruption for twenty years. Issues thereon.

acquiesced in or submitted to by the defendant for the At the trial, before Blackburn, J., at the York space of one year ? The jury answered the two first Summer Assizes, 1863, it was proved that during a questions in the affirmative, and the last in the period of more than forty years immediately preceding negative ; and thereupon a verdict was entered for the 22nd of Febþuary, 1861, the defendant had actually the defendant upon the third and fourth pleas. There enjoyed as of right the casement claimed in the third were other issues, some of which were found for the and fourth pleas, of going through a door and across plaintiff, while upon others the jury was discharged, a garden of which the plaintiff was tenant under Sir but they are all immaterial to the argument. W. Lawson, for the purpose of cleaning out a privy In Michaelmas Term, Temple, Q.C., for the plaintiff, which stood upon the defendant's premises. On the obtained a rule nisi for a new trial, on the ground that 22nd of February, 1861, the defendant received the the learned Judge misdirected the jury in telling them following notice from Sir W. Lawson :

that there was evidence of a sufficient user to comply “William Cartwright,-It appears there is a great

with the statute, and in telling them there was doubt as to your having a right of way through Philip evidence of an interruption acquiesced in for more than Bennison's garden : the case will be inquired into

a year within the meaning of the statute, to-morrow afternoon, or to-morrow at latest, so you must wait till then before you can pass through the

Price, Q.C., and Kemplay, showed cause. garden."

The point is a new one, and turns entirely upon the

construction of section 4 of the Prescription Act, 2 & 3 Shortly afterwards, no inquiry having taken place, Vict. c. 71. By the 2nd section of that Act it is prothe defendant went to his attorney, and thereupon a

vided that where any way or watercourse, or other like negotiation took place between the attorneys of Sir W. easement, “shall have been actually enjoyed by any Lawson and the defendant's attorney, with a view to a reference or other settlement of the claims of their the full period of twenty years," the claims thereto shall

person claiming right thereto, without interruption for respective clients.

be defeated or destroyed only by showing “that such In October, 1861, the plaintiff built in his garden a wall which prevented all access to the privy from the way or other matter was first enjoyed at any time garlen.

prior to such period of twenty years, but nevertheless

such claim may be defeated in any other way by which Upon the 13th of February, 1862, the negotiations the same is now liable to be defeated ; and where such were brought to a close by the following letter from the attorneys of Sir W. Lawson to the defendant's have been so enjoyed as aforesaid for the full period of

way or other matter as hereinbefore last mentioned shall attorney

forty years, the right thereto shall be deemed absolute SIR, -A further investigation into your clients and indefeasible, unless it shall appear that the same was assumed right has satisfied us that it cannot be sub- enjoyed by some consent or agreement expressly given stantiated, and we are therefore instructed to with or made for that purpose by deed or writing.” draw the offer of a reference contained in our letter

Then by the 4th section it is enacted, that "each of of the 30th ult., and we leave you to take what steps the respective periods of years herein before mentioned you choose.

shall be deemed and taken to be the period imme. “Yours obediently,

diately next before some action or suit wherein the " WRIGHT & BLOUNT.”

claim or matter to which such period may relate shall

have been or shall be brought into question, and that without bringing an action, he has no right. That no act or other matter shall be deemed an interrup- was the point decided in tion within the meaning of this statute, unless the same Ward v. Robins, 15 M. & W. 257 ; shall have been or shall be submitted to or acquiesced in and that decision is conclusive upon the present case. for one year after the party interrupted shall have had Parke, B., there says (p. 241), “The Act of Parliament or shall have notice thereof, and of the person making is so worded that, though there have been fifty years or authorising the same to be made.”

of enjoyment to the time of the act done, that is no Therefore section 2 says that an uninterrupted en- defence, unless it continues up to the time of the suit." joyment as of right for forty years shall give an inde. It is not necessary that the plaintiff should contend feasible title ; and then section 4 explains that that this is a reasonable state of things ; it is enough “uninterrupted” means “not broken by any inter that it has been so decided. In ruption that was acquiesced in or submitted to for the Wright v. Williams, 11 M. & W. 77; space of a year.” There is nothing, either in the Flight v. Thomas, 11 Ad. & E. 688, In Dom. language of the sections or in any decision upon it, to Proc. 8 Cl. & Fin. 231; show that the acquiescence or submission there spoken Cooper v. Hubbruck, 12 C. B. (N.s.) 456 ; of means anything but acquiescence or submission in it was assumed that you must bring your action in the ordinary sense of the words>i.l., assent and non- order to acquire a right. Here actual enjoyment of resistance; and the jury have found upon ample the way had ceased nearly two years before action evidence that there was no interruption in that sense brought. of the word. The construction contended for by the

CROMPTON, J.-The question whether or no there plaintiff would import words into the statute which has been a non-acquiescence of the defendant in the the Legislature has not thought fit to insert. Suppose interruption of his casement turns upon the constructhat this alleged interruption for two years had taken tion of section 4 of the Prescription Act; and, upon .place in the middle of the forty years instead of at looking at the words of that section," I entertain no the end, and that the plaintiff had enjoyed his ease

doubt that this was a matter for the jury, and a matter ment for fifteen or twenty years between such obstruc- which the Judge could not have kept from them. I tion and the bringing of the plaintiff's suit. It could

find nothing in the statute to show that non-acquiesnot be contended then that the question of acquiescence was not rightly left to the jury. But whether action. The party must, it has been said, show an

cence can only be shown by the bringing of a suit or the interruption takes place in the middle or at the end of the enjoyment is immaterial.

enjoyment continued up to the time of the suit. But The question is not, whether there has been nonruption, within the meaning of the statute, had of

suppose we were considering whether or no an interuser, but whether there has been acquiescence,

curred in the middle of the forty years, we should Carr v. Foster, 3 Q. B. 581.

look generally at all the facts evidencing acquiescence or

non-acquiescence, without inquiring whether an action · Temple, Q.C., and T. Jones, in support of the rule. It is not disputed that the defendant had through the cases, that where an obstruction occurs at the

had been brought. It does not, therefore, follow from out notice of the obstruction to his alleged right; there end of the time, the enjoyment must be continued up fore, if he has acquiesced in the interruption, he is to the bringing of the suit, or that non-acquiescence bound by his acquiescence.

can be shown only by bringing a suit. I think that Previously to the passing of the Prescription Act, it the words "submitted to or acquiesced in” refer to would have been necessary for the defendant to prove submission or acquiescence in their ordinary sense, and an immemorial user. But the statute relieved him not merely to default in bringing an action. It is not from that necessity upon certain conditions. Those because it has been found necessary to put construcconditions, limiting as they do the rights of the tions which lead to an absurd result upon some parts owner of the servient tenement, are distinct and of the Act, that we should extend those constructions stringent; and it is clear the Legislature intended to other parts of the Act where we are under no neces. that there should be no vague or indefinite test of

sity to do so. I am, therefore, of opinion that the non-acquiescence, but that it should be defined acquiescence spoken of in the fourth section is an unmistakably by the bringing of some suit or action acquiescence to be found by the jury, and that here within a year.

the case was properly left to the jury. Under the Prescription Act the claimant of an ease. ment has no right whatever until an action is com MELLOR, J.-I also am of opinion that this rule menced. He has only an inchoate right, which does should be discharged. The natural meaning of the not become fixed and absolute until the writ is issued; words “submitted to or acquiesced in" appears to me and whether he ever acquires any right at all, depends to be very plain. That expression refers to the case upon when the writ is issued. If the claimant uses a where a party has by his conduct allowed an obstrucroad for twenty years as of right without disturbance, tion to be effected, and to remain in force, without and then permits an obstruction to exist for a year any act on his part to show that he resists the

obstruction. Here, it appears to me, there was a very 1000 tons of weight and measurement, proportioned in proper question to be submitted to the jury, and the the usual manner, but was not capable of carrying that jury were perfectly warranted in saying there had amount if the weight and measurement goods were probeen no acquiescence within the meaning of the portioned in the manner usual with Sydney cargoes :statute.

Held, that the condition had been complied with, as

it only warranted that the ship would carry the speciBLACKBURN, J.--I am of opinion also that I took fied amount if loaded in the ordinary way, without the right course at the trial. The matter turns upon regard to its destination. the second and fourth sections of the Prescription Act. [The learned Judge read the sections.] The

This was an action tried before Blackburn, J., at person therefore claiming a right of way must have the Liverpool Summer Assizes, 1863. enjoyed it as of right for the full period, and it is

The declaration was for non-payment of freight admitted that such full period must expire at the under a charter-party, which is set out at length in time of the commencement of some suit or other. the report of the argument of this case, on demurrer, Now it is contended by Mr. Temple and Mr. Jones in the 32 L. J. Q. B. 179. The material provisions that it follows from the above that, when the Act of the charter-party, so far as regards the present says that “no act or other matter shall be deemed question, were as follows :—The charterer was to have to be an interruption, within the meaning of the the full reach of the vessel's hold, from bulk-head to statute, unless the same shall have been or shall bulk-head, for a full and complete cargo of lawful merbe acquiesced in for one year,”-it must be taken to chandise; upon a voyage from Liverpool to Sydney, mean that a party has acquiesced in and submitted to N.S.W. And he was to pay for the use and hire of an interruption for the space of a year unless he has, the said vessel, in respect of the said voyage, the sum within that time, issued his writ. I do not agree in of 1,5501. in full, on condition of her taking a cargo that construction. When we find a wall built to of not less than 1000 tons of weight and measureobstruct the claimant, and thereupon remonstrances ment." from him followed by letters and negotiation betweon Upon the argument of the demurrer above-menhim and the other party, I can hardly think that such tioned, the Court held, that the breach of this conperiod of negotiation was a period of acquiescence. dition was not an absolute answer to an action for the That, therefore, leaves less than twelve months of freight, as the ship had sailed, and the charterer had submission to the obstruction, whether we reckon to derived some benefit; but it was suggested that the the act of alleged trespass or to the issuing of the breach of the condition might be an answer pro tanto writ; and I myself think that the question, if it arose, in reduction of damages. would turn rather upon when the act was done than At the trial, the main question in dispute was, upon when the writ was issued. I am therefore of whether this condition had been complied with or not. opinion that both the direction and the verdict were It was proved, that the ordinary mode of loading right, and the rule must be discharged.

vessels was to put in one-third of “weight,” and two

Rule discharged. thirds of " measurement” goods. That is to say, oneNote.-- An application for leave to appeal was made third of heavy goods, where the tonnage is calculated by Temple, Q.C., but refused by the Court.

by weight, and two-thirds of light goods where the tonnage is calculated by measurement. And it was

proved that by adopting these proportions the vessel Q. B.

} Pust v. Dowie. could be loaded to the best advantage, being thus 3 FEB. 1864.

most completely filled, and at the same time sunk Charter-party-Condition as to Capacity of Ship to the proper water-line. Evidence was, however, -Proportions of "weight and measurement” given to show that, owing to the great prepon

derance of heavy over light goods in the cargoes goods.

usually dispatched to Sydney, it was practically imA charter-party was entered into at Liverpool for a possible as a general rule to adopt this system of loadvoyage to Sydney. The charterer was to have the whole ing. In such ships the proportions usually were tworeach of the vessel, and was to pay for her use 1,5501., thirds weight to one-third measurement, and the "on condition of her taking a cargo of not less than 1000 holds of such vessels were consequently not completely tons of weight and measurement.The ordinary mode filled. The learned Judge left to the jury the following of loading cargoes in the port of Liverpool, is to put questions :—1st. Was the vessel capable of taking a one-third of "weightgoods, to two-thirds of " measure- cargo of 1000 tons of weight and measurement if loaded mentgoods. In the case of cargoes for Sydney, how in the manner usual in the port of Liverpool ? This ever, owing to the preponderance of heavy over light question the jury answered in the affirmative. 2nd. goods destined for that port, vessels are ordinarily Was the vessel capable of taking a cargo of 1000 tons loaded with a much greater proportion of "weight" | weight and measurement if loaded with an ordinary goods. The vessel in question was capable of carrying Sydney cargo ? This the jury answered in the nega

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