administratrix and her surety. Usual conditions, and the damages in respect of the breaches in the declarabreaches of those conditions by the administratrix. tion mentioned were never ascertained or liquidated, Fourth plea, by H, the surety, that after the causes of and that, if they had been, they would not have action accrued he became bankrupt. Second replication to fourth plea, that such bankruptcy was before the passing of the Act, 24 & 25 Vict. c. 134. Third replication to fourth plea, that the conditions of the bond had never been wholly performed, that it was always possible that further breaches might be committed, that the damages in respect of the breaches never were liquidated, and that no proof in respect of the bond was ever made: Held, on demurrer, that both replications were good, the bond not having been proveable at the time of H's bankruptcy. Declaration on an administration bond for 4007. given, on the 2nd of December, 1858, by the defendant Sarah Brookes, then Sarah Baker, and the defendant John Hughes, to the Judge of the Court of Probate, upon the usual conditions, for the due administration of the personal estate of John Baker by the defendant Sarah. Breaches, 1st, that the defendant Sarah did not make a true and perfect inventory; 2nd, that she did not exhibit such inventory in the district registry; 3rd, that she did not make a true and just account of her administration; 4th, that she wasted, instead of duly administering, a great part of the said personal estate. Averments, that the bond had been assigned to the plaintiff by order of the Judge of the Court of Probate; and of performance of conditions precedent. Judgment was signed against the defendants, Henry Brookes and Sarah his wife, for want of a plea. amounted to the said penalty of the bond; and that the said penalty never was proved under the said bankruptcy, and that no proof in respect of the bond or of anything secured thereby, or payable thereunder, was ever made under the said bankruptcy. Demurrer to each of these replications, and joinder in demurrer. Field, in support of the demurrer. The replications are bad; they do not traverse or avoid the plea of bankruptcy, which is a good answer to the action. There are two questions. 1st, whether the unliquidated nature of the breaches prevented the claim from being proveable? 2nd, whether the plaintiff is entitled to have judgment on the bond to stand as a security against future breaches? Now, it is clear that if the bankruptcy had taken place since the recent Act, there would have been a complete answer to the action. But the claim might have been proved even before the late Act, Harkin v. Bennett, 8 Exch. 107; [MARTIN, B.-Are there no cases on this point?] Taylor v. Young, 3 B. & Ald. 521 ; The Overseers of St. Martin v. Warren, 1 B. & In those cases there was nothing to measure the debt; but here the debt may be measured. Why may not the value of the intestate's estate be ascertained? That would be the amount to be proved. If it cannot Pleas, by the defendant Hughes, 1st, traverse of be ascertained, then the penalty would be the debt. breaches. 2nd. Non est factum. 3rd. That the bond was not assigned. 4th. That the defendant, before action, became bankrupt within the meaning of the statutes in force concerning bankrupts; and that the causes of action in the declaration mentioned accrued before the defendant became bankrupt. 2nd replication to the fourth plea. That the said John Hughes so became bankrupt, as therein is mentioned, and was adjudicated bankrupt thereupon and obtained his certificate, being the discharge on which that plea relies before the passing of the Act of Parliament made and passed in the 24th and 25th years of the reign of Victoria the Queen, for amending the law relating to Bankruptcy and Insolvency in England. 3rd replication to the fourth plea. That at the time of the said bankruptcy the said condition had not, nor has it now, wholly been performed; and it was then, and is now, and always has been, possible that further breaches of the said condition other than those which had been committed before the said bankruptcy might, and may, be committed; and the plaintiff says that [MARTIN, B.-Taylor v. Young seems direct against you. The bond is not proveable at all, there being a difficulty as to valuation.] Dowdeswell, for the plaintiff, was not called upon. Per CURIAM.-(Pollock, C.B., Martin, Channell, and Pigott, BB.) The plaintiff is entitled to judgment. Judgment for the plaintif. Ex. Ch. SHEPHARD and Another E. memorial Usage-Presumption of The Registrar of an Archdeaconry Court receives ar tain fees for duties attached to his office. From the wear 1727 to 1801 fees of the unvarying amount of is. 6d. and 4s. 6d. were received. From 1801 to 1857, when the present dispute arose, fees slightly in excess, of 7s. 6d. and 4s. 6d. were received. now claimed: The excess was not outgoing churchwardens appear and deliver their presentment papers, which are inspected by the Judge, and filed by the Registrar, who enters a minute of them in the visitation book. Held-that the modern excess did not affect the original right to the fees of 7s. 6d. and 4s. 6d. That, if it were necessary to their validity, the fact of these fees having been received for an unbroken period of 130 years, raised a strong presumption that fees of that amount were immemorial. Long-continued modern user of a right capable of legal origin, raises a strong presumption of the existence of that legal origin, and the onus lies on those who seek to upset it, of showing that it is founded in usurpation. This was an appeal from the judgment of the Court of Common Pleas *, in an action for the recovery of fees by a Registrar of an Archdeacon's Court: it was made into a special case by consent and by a Judge's order, and there was a judgment in favour of the plaintiff. The defendants, who were the Churchwardens of the parish of Little Totham, in the archdeaconry of Colchester, now appealed. The plaintiff is Registrar of the archdeaconry of Colchester, in the diocese of Rochester, which comprises 200 parishes and eighteen rural deaneries within the jurisdiction of the Archdeacon as ordinary. The defendants are Churchwardens of Little Totham, in Essex, within the archdeaconry. The Registrars hold their office jointly and severally for their lives and life of survivor by patent, under the seal of the Archdeacon. The archdeaconry of Colchester is divided into four districts, or "calls," and Little Totham is in the Kelvedon "call." The proceedings of the Court of the archdeaconry are as follows : The Archdeacon issues a process to the Registrars under his seal, to appoint a day for the "Easter visitation" in the parish church of Kelvedon, or on some occasions in Witham church, and directing the churchwardens to attend. This process is delivered to the "apparitor" (the summoning officer of the Court), who issues citations accordingly. Presentment papers (printed articles of inquiry), are sent by the Registrar to the rural dean of the eighteen rural deaneries. The rural dean arranges with the churchwardens a day when he shall make his visitation, and in his presence, and in their own parish, the churchwardens fill up and sign their presentments ready for delivery at the visitation. On the day appointed for visitation, the churchwardens attend the Registrar at an inn, where printed declarations of office under 5 & 6 Will. 4, c. 62, s. 9, are delivered to them, which they sign. At an hour appointed, the Archdeacon, official or surrogate takes his seat in the church, attended by the Registrar, and after service the Court is opened. The *14 C. B. (N. s.) 431. The churchwardens elect deliver in their declarations of office, which are acknowledged before the Judge and filed by the Registrar, who enters a minute of them in the visitation book. There is a visitation held at Easter, and one at Michaelmas to amend any errors in the one at Easter. The various duties occasion great expense and outlay in clerks' salaries, printing, postage, and sundries, and for these services the Registrars are only paid by "visitation fees" claimed as follows: At the Easter visitation for process, schedule citations, service, act on appearance of outgoing churchwardens, articles of inquiry, presentment and filing, declarations of office and filing 7s. 6d., of which 2s. is due to the official, and 1s. to the apparitor. At the Michaelmas visitation 4s. 6d. is payable in the whole of which 1s. is due to the official, and 1s. to the apparitor. : The gross amount of visitation fees received by the appellants as Registrars is under the sum of 1007. The claim in question arose in respect of the following visitations :- There were On the 20th of May, 1857, there was a visitation at Kelvedon, to which the defendants were cited as described, as churchwardens of Little Totham. The defendant, John Payne, attended, and subscribed the statutory declaration, and was admitted. The defendant, Henry Quihampton, did not appear. also visitations on the 26th of October, 1857, 31st of May and 27th of October, 1858, 9th of June and 6th of December, 1859, and on the 9th of June, 1860, and the total amount claimed by the plaintiff in respect of such visitations, and refused by the defendants, is 21. 3s. 6d. All such fees being claimed,—1st, as just and lawful fees settled by competent authority; 2nd, as ancient and accustomed fees due by virtue of their office; and 3rd, as a reasonable compensation for work and labour done. The question for the Court on the special case was, whether the plaintiffs were entitled to recover from the defendants the said sum or sums, or any or either of them, or any part of them, and the Court was to be at liberty to draw inferences of fact. If the Court should be of opinion in the affirmative, their judgment was to be entered for the plaintiff for the whole of the sum of 21. 3s. 6d., or such part of such sum as the Court should order. If the Court should be of opinion in the negative, then judgment of nolle prosequi was to be entered up for the defendants. It was agreed that in any event no costs should be paid by the plaintiffs to the defendants, or by the defendants to the plaintiffs. The points marked for argument on the part of the plaintiff were, "that the plaintiffs were entitled to recover the sums of money claimed,-1st, as just and lawful fees settled by competent authority; 2nd, as ancient and accustomed fees due to them by virtue of the Court of Error is required to draw any inferences their office; 3rd, as a reasonable compensation for of fact from the facts stated in the case which the work and labour done." Court where it was originally decided ought to have drawn. On the part of the defendants,-1st, that the fees claimed could be due only by virtue of a uniform and immemorial custom, or upon a quantum meruit, on the ground of work being done at the request of the defendants; 2nd, that the facts stated in the special case showed that no uniform or immemorial custom has ever existed; 3rd, that the facts negative any notion of a request by the defendant." The judgment was for the plaintiff, and against this judgment the defendants now appealed. Mellish, Q.C. (Alfred Wills with him), for the plaintiffs in Error, referred to the following authorities: 1 Stephen's Laws of the Clergy, 227; Grove v. Elliott, 2 Vent. ; Middleton v. Crofts, 2 Atk. 650. Mathew v. Burdett, 2 Salk. 512; Moore v. Moore, Ld. Hardwicke, 157; 2 Inst. 533; 4 Inst. 274; Veale v. Prior, Hardres, 351; He also referred to canons 116, 117, 119, 123, 135, 136, and to the judgment of the Court below, reported in 14 C. B. (N. s.) 431. Coleridge, Q. C., for the defendants, referred to 4 Coke Inst. 339; The inferences which the Court below have drawn are stated in their judgment delivered by my Brother Willes. We agree in them all; but they appear to have thought it unnecessary to say whether the proper inference to be drawn from the facts was, that fees of the fixed amounts of 78.. 6d. and 4s. 6d. were immemorial, inasmuch as the fees need not be of a fixed and ascertained, but may be of a reasonable amount; and they drew the inference of fact that these amounts were reasonable. Mr. Mellish, on the argument, suggested this meant that, in point of law, there might be an ancient fee varying in pecuniary amount from time to time with the changes in the value of money and other circumstances, and subject only to the restriction that it should be reasonable, and he questioned the accuracy of this position. Without expressing, or indeed forming, any opinion upon this question, we prefer to rest our judgment affirming that of the Court below on this, that, in our opinion, the facts stated in the case are such that it should be presumed that the fees of 7s. 6d. and 4s, 6d. were immemorial fees attached to the office of Regis trar, if that presumption is necessary to give them validity. The facts stated in the case show that from 1727 to 1801 visitation fees of the unvarying amount of 7s. 6d. and 4s. 6d. were uniformly received. From 1801 to 1857 (when the present dispute originated) fees of a vary. ing amount, but always slightly in excess of 7s. Gd. and 4s. 6d., were received. The amount in excess of 7s. 6d. and 4s. 6d. is not now claimed; and if it were the uniform receipt for seventy-one years (from 1727 to 1801) of the amounts of 7s. 6d. and 4s. 6d. would be over Comyn's Digest, "Courts" (N. 9); "Eccle-whelming evidence that the excess was a usurpation. siastical Persons" (C. 5); Rolle's Abridgment, 285, "Prohibition;" But the modern usurpation of an excess does not affect the title to the original fees of 78. 6d. and 4s. 6d. These have been received from 1801 to 1857 as much as from 1727 to 1801, so that the title to them depends on an unbroken perception as of right for 130 years. That does not in itself give any title; but in favour of vested 1 Cardwell's Documentary Annals, 92, 145, 164; interests, and for the quieting of titles, the rule of evidence has been established that where there has been long continued modern user of a right capable of a legal origin, the existence of that legal origin should be presumed, unless the contrary be proved. This presumption is not one juris et de jure, which cannot be rebutted; but neither is it one purely of fact, and only to be drawn when the jury really entertain the opinion that, in fact, the legal origin existed. The true rule seems to be laid down by Lord Wensleydale (then Parke, B.,) in Jenkins v. Harvey, when he says, that the correct mode to direct a jury is to tell them that from uninterrupted modern usage they * 1 Cr. M. & R. 877. should find the immemorial existence of the payment (if that be necessary for its validity), unless some evidence is given to the contrary, or, as he says in delivering the written judgment of the Court on the second trial of the case, from proof that an office existed in 1752, "the jury may, and ought to presume it to be prescriptive, if that be necessary to make it valid, unless the contrary be proved." The claim in that case was by the corporation of Truro for a metage due of 4d. per chaldron for coals in that port, and it was supported. I mention this as showing what is meant by the latter part of the sentence quoted. I suppose neither the Barons of the Exchequer nor the jurors, as antiquarians, believed that 4d. a chaldron was actually paid before Richard the First returned from the Holy Land; but the modern user was enough to cast upon the other side the onus of proving that it was a usurpation. We think that, in the present case, the modern usage for 130 years to take fees of 7s. 6d. and 4s. 6d. | raises a strong presumption that visitorial fees of that amount were immemorial, and though the other facts stated in the case are such as raise an inference that the amounts had formerly been varying and lower in amount, we do not think that they are sufficient to satisfy the onus cast upon those who seek to upset an enjoyment for so long a time by showing the origin to be in usurpation; we think, therefore, that if it be necessary for the validity of these fees that fees of that amount should be immemorial that presumption ought to be made. In every other respect we agree with the reasons given in the judgment in the Court below, which, we think, ought to be affirmed. Adm. This was a cause of salvage, instituted by the owners of the steam-tug "Triumph" against the brig "Kate," freight and cargo, for services rendered in November, 1863. On the 3rd of December the "Kate" was arrested by the plaintiffs in the sum of 5007. On the 12th of December an appearance was entered on behalf of the owners; affidavits were at the same time filed, showing that the value of the property saved (ship, freight, and cargo) was 6501., and no more; and notice of motion was given for the dismissal of the suit with costs and damages. On the 16th of December the plaintiffs allowed the property to be released without bail. The hearing of the motion was postponed at the request of the plaintiffs; and on the 20th of January they filed a valuation by a valuer appointed by the Receiver of Wreck for Southampton, which was dated 15th December, and stated the value of the property to be 8207.; and also affidavits, placing the value at a still higher amount. The defendants had meanwhile filed their proofs of damage, for detention, wharfage dues, &c., amounting altogether to 1107. The 17 & 18 Vict. c. 104, s. 460, decides that in certain cases of dispute with respect to salvage, "the dispute shall be referred to the arbitration of any two Justices of the peace," &c. The 25 & 26 Vict. c. 63, s. 49, extends such provision "to all cases in which the value of the property saved does not exceed 1000l. ;” and section 50 provides that, "whenever any salvage question arises, the Receiver of Wreck may, upon application from either of the parties, appoint a valuer to value the property," &c.; and "any copy of such valuation purporting to be signed by the valuer, and attested by the Receiver, shall be received in evidence in any Judgment affirmed. subsequent proceeding." THE KATE. 26 JAN., 8 FEB. 1864. Before the Right Honourable Dr. LUSHINGTON. Salvage-Jurisdiction-Costs and DamagesCrassa Negligentia-17 & 18 Vict. c. 104, 8. 460; 25 & 26 Vict. c. 63, ss. 49, 50. By the 460th section of the Merchant Shipping Act, 1854, and the 49th section of the Amendment Act, 1862, the Court of Admiralty has not jurisdiction to determine and award the amount of salvage due, if the value of the property saved is proved not to exceed 1000l.; but, nevertheless, it retains jurisdiction to condemn, in costs and damages, salvors so wrongfully arresting property, and for other collateral purposes. Lawford v. Partridge, 1 H. & N. 621, distinguished. The Court will not decree for damages, unless the circumstances show mala fides or crassa negligentia on the part of the salvors in arresting, whereof the fact that the salvors arrested without first obtaining a valuation of the property from the Receiver of Wreck (us provided for by 25 & 26 Vict. c. 63, s. 50) is not conclusive evidence. 26 JAN. 1864. Lushington, in support of the motion. The William and John, 1 N. R. 484. The defendants, therefore, are entitled to costs, as of course. They ought also to have the damages they have actually suffered. Damages, if not to be awarded in every case where the value of the property falls short of the statutory mark, 10007., ought at least to be given when the plaintiffs, as in this case, arrest without previously obtaining a valuation from the Receiver of Wreck, as provided for by 25 & 26 Vict. c. 63, s. 50. The arrest then amounts to an act of crassa negligentia, upon which damages clearly follow, The Evangelismos, Swabey, 378. a case in all important respects like the present. The Victor, 1 Lushington, 72, claim unfounded in law. Milward, contrà. The value of the property was so nearly 10007. that it was not crassa negligentia on the part of the plaintiffs to arrest, and they withdrew as soon as the value of the property was ascertained. Without crassa negligentia, and without mala fides which is not imputed here, there can be no claim of damages for setting the law in motion, The Evangelismos, Swabey, 378. But on another ground the Court can neither give costs nor damages. The jurisdiction of this Court having been taken away by the statute 25 & 26 Vict. c. 63, this Court has no power to make any order in the case. The proceedings are coram non judice;" and altogether void, Tinniswood v. Pattison, 3 C. B. 247 ; Cannon v. Smalwood, 3 Lev. 203; Lawford v. Partridge, 1 H. & N. 621. not even give costs." I have no disposition to assume a right to question this authority, but I will observe, that it was founded upon an express enactment that the County Court "shall not have cognisance of any action of ejectment in which the title to any corporeal or incorporeal hereditaments shall be in question." The present case differs from that in several important respects. In the first place the Court of Admiralty had original jurisdiction in all cases of salvage, and still holds and exercises that jurisdiction, save as regulated by the Merchant Shipping Act, 1854, and the Amendment Act, 1862. The positive direction, contained in the former statute, that in certain cases the dispute shall be referred to the Justices, appeared to me equivalent to a prohibition to this Court to exercise its jurisdiction in such cases, but it This last case is directly in point to show that the does not do more than that. In the second place the Court cannot even give costs. Lushington in reply. proceedings in this Court are in rem, valuable property is arrested and detained by process of the Court; and The proceedings here are in rem; and the Court hence arise strong reasons in favour of allowing the must have power to direct the disposal of the property and the incidental rights of the parties, notwithstandCourt its usual powers of dealing with the property in its hand; and, if so, the ordinary power of the Courting it has not authority to proceed with the main to award damages continues also. The jurisdiction of this Court, moreover, is not wholly taken away by the statute 25 & 26 Viet. c. 63; it is taken away by implication merely, that is, only so far as is necessary; and upon reference to 17 & 18 Vict. c. 104, s. 460, it appears that all that is taken away is the right to "determine the dispute with respect to salvage." 2 FEB. 1864. DR. LUSHINGTON.-The defendants pray a decree for costs and damages. The plaintiffs now say that the Court, having no jurisdiction over the case at all, has no jurisdiction to give costs and damages; and in support of this contention Mr. Milward has cited the cases of Tinniswood v. Pattison (3 C. B. 247), and Lawford v. Partridge (1 H. & N. 621). In Tinniswood v. Pattison it was held that a County Court could not proceed in replevin after a plea or cognisance setting up a title to freehold, although no issue was taken on that part of the plea; but it must be observed, that that was a question of proceeding with the cause, not of costs. The case of Lawford v. Partridge goes further, for it decided that inasmuch as the County Court had by statute no cognisance of the case, it had no power to non-suit and give costs; and during the argument the Lord Chief Baron said (which is no doubt true), "After a prohibition the Judge can do nothing, course of the cause. For instance, without the order of the Court the marshal cannot release the property, and how can the Court order the release, if its hands are tied altogether? Property might thus remain under detention for an indefinite time. Again, who is to pay the legal expenses of the custody of the property? Again it must be admitted to be right and just that a defendant whose property has been wrongfully arrested and detained, should recover costs and damages. As a fact it has always been considered within the power and practice of this Court to award costs and damages in such cases, and this practice, which does justice in the simplest and most direct way, received the approbation of the Judicial Committee in the case of The Evangelismos (Swabey, 378). I am of opinion, therefore, that I have power in this case to make a decree for costs and damages. My decree, however, will be for costs only. The defendants are not, in my opinion, entitled to damages, because the circumstances of the case do not show on the part of the plaintiff any mala fides or crassa regligentia, without which, according to the case of The Evangelismos, unsuccessful plaintiffs are not to be mulcted in damages. A similar principle obtains in Common Law, Dacres v. Jenkins (11 M. & W. 756). Decree for costs only. |