V.C. W.] HUDSON v. KING. [V.C. W. said John Conyers | John Conyers Hudson as the sole next of kin of his said executors and ad- deceased children Mary Frances Hudson and Conyers Hudson, or otherwise, in the trust-funds comprised in the indenture of settlement of the 2nd Sept. 1817, was bound by the provisions of the said indenture of the 16th June 1834, and by the contract of the said John Conyers Hudson therein contained to relinquish to and in favour of the said plt. Mary Hudson, all right, title and interest whatsoever which he might by any means whatsoever acquire in and to the real and personal property and effects comprised in and subject to the trusts of the indenture of settlement of the 2nd Sept. 1817, and had passed to Thomas Fothergill (the surviving trustee) upon the trusts declared by the indenture of the 16th June 1834 in favour of the plt.; or, secondly, whether such interest constituted part of the estate of the said John Conyers Hudson, deceased. ohn Conyers Hudson, he, the The said John Conyers Hudson and his wife, after the execution of this last deed, continued to live separate and apart until the death of the former, which took place on the 30th Oct. 1860. By his will he appointed the defts. Thos. Court and the Rev. Samuel King executors, who duly proved the same. The Teed, Q.C. and J. Osborne, for the plt. the wife, contended that the answer of the court must be in the affirmative; that the property or shares to which the husband had become entitled by the deaths of his two children who had attained their respective ages of twenty-one, but who died respectively intestate, was bound by the trusts of the marriage-settlement. children could only obtain a derivative right to any portion of the property settled under the trusts of that settlement, and therefore the title of the testator to such shares originated with such settlement. The covenant of the husband that anything he might derive through the marriage was therefore bound by the trusts of that settlement. The intention of the parties. was clear, and the whole circumstances amounted to a contract. They cited Parkinson v. Dashwood, 7 Jur. N. S. 854; s. c. 4 L. T. Rep. N. S. 41; Childers v. Eardley, 3 L. T. Rep. N. S. 166; Smith v. Baker, 1 Y. & C. C. C. 23; Graffley v. Humpage, 1 Beav. 46. The Solicitor-General (Palmer) and Karslake, for the representatives of the husband, were not called upon. The three children named in the recitals of the deed The VICE-CHANCELLOR, after stating at length the of the 16th June 1834, viz. Mary Frances Hudson, limitations in the deed of settlement and the recitals Conyers Hudson and Anne Hudson, were the only in the deed of separation, said, the recitals were of con-children of the marriage. They all died in the life-siderable importance as bearing upon the proper contime of their father; Mary Frances Hudson having attained her age of twenty-one, Conyers Hudson having also attained his age of twenty-one years, but Anne Hudson having died an infant and unmarried. Both Mary Frances Hudson and Conyers Hudson died unmarried and intestate, leaving their father the said John Conyers Hudson their sole next of kin. No appointment of the trust property comprised in the indenture of settlement of the 2nd Sept. 1817 was ever executed by the husband and wife, or by either of them. The trust property consisted of personalty only, and was of a considerable amount. The plt. (the wife) was advised and contended that the beneficial interest acquired by the said John Conyers Hudson (the husband), as next of kin of his deceased children, Mary Frances Hudson and Conyers Hudson in the said trust-funds, was bound by the provisions of the separation deed of the 16th June 1834, and by the contract of the said John Conyers Hudson therein contained, to relinquish to and in favour of the plt. (his wife) all right, title, or interest whatsoever which he might by any means whatsoever acquire in and to the real and personal property and effects, subject to the trusts of the indenture of settlement; and that in the events which had happened the plt. (the wife) was beneficially entitled to such trust-funds. The claim of the wife was disputed by the executors of the will of John Conyers Hudson (the husband), who alleged that such beneficial interest was not so bound, but that the trust-funds (subject to the wife's lifeinterest) formed part of the personal estate of their testator (the husband). The question for the opinion of the court was, whether the beneficial interest so acquired by the said struction to be put upon the latter deed; that the recitab of the uncertainty which then prevailed as to whether the husband, under or by virtue of some subsequent or other deed, or by his marital right or otherwise, had any vested or contingent or other right, title, or interest in the vested property, was also of importance, as showing, as the operative part of the deed did expressly, that all the children's rights were to be secured from the operation of the deed. It appeared to him (the V.C.) that the whole scope of the settlement showed that there was, when the time arrived, a severance of their interests; and that the shares, having once become severed and vested, nothing which afterwards occurred could have divested them of their shares. It should also be observed that the covenant did not follow, but was different from the terms of the recitals. If the wife had purchased an estate out of her own moneys, and the husband had again purchased of her, could it be said that such after-acquired property could have been affected by the terms of his covenant in the separation deed? He thought clearly not, and the interests of the children came to him as distinctly as a purchase would. The answers to the questions for the court's opinion would therefore be: First, that the beneficial interest so acquired by the said John Conyers Hudson, as the sole next of kin of his said deceased children, in the trust-funds comprised in the marriage-settlement of the 2nd Sept. 1817, were not bound by the provisions contained in the indenture of the 16th June 1834. Secondly, that such interests now constituted part of the estate of the said John Conyers Hudson, deceased. Order accordingly. Solicitors: Lambert and Son; Graham, Kinderley and Domville. C. B.] Common Law Courts. NEWTON v. CUBITT. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs., Barristers-at-Law. May 2 and June 17. This cause came on for trial before Cockburn, C.J. and a special jury, at the sittings after Hilary Term 1859, when a verdict was entered for the plts., subject to a special case. CASE. C. B. ender t Manor several subsequent conveyances to the same effect, the The owners of the said ferry have an ancient em- NEWTON v. CUBITT. Ferries-Disturbance of right. Before the year 1800 the Isle of Dogs was uninhabited, with one roadway from Poplar, on the north side, to Potter's-ferry stairs on the south, which ferry belongs to the plis. Since that year the isle has become populous, and is now covered with manu•facturing establishments. The defts. having built over | part of the isle, which is now called Cubitt's-town; established a ferry for the accommodation of the inhabitants residing there, from a point called Cubitt's-pier, about 1280 yards distant from The Isle of Dogs is situated on the banks of the Potter's-ferry, for the purpose of conveying pas-Thames, and the south side thereof is opposite to sengers to Greenwich. These new buildings were Greenwich. The island is, except on its northern side, only connected with the old roadway by ways which surrounded by the river Thames, and is about one the owner of the land had chosen to dedicate to the square mile in extent. Up to a recent period the public. The plts. objected to this new ferry, on the whole of the island was marsh, intersected by dykes, ground that the defts. carried within their line of and used only for the feeding of cattle. In many pers ferry; or if not, that they carried near it for the it was covered with reeds, and in some seasons was, ia purpose of evading it, they claiming an exclusive parts, under water. It was uninhabited except ty right to carry passengers from the whole isle: the persons working the ferry, and by a man whose Held, that Cubitt's-town being at such a distance duty it was to take the cattle off the marshes. Till the from Potter's-ferry as to be of substantial import- | year 1812 there was only one road or way in the ance to the inhabitants, persons passing from that island, namely, a road or way leading from Potter's side of the isle were not bound to go to such ferry, ferry stairs in a northerly direction, through the centre and that the defts., by establishing the ferry com- of the island to the village of Poplar, where it ran plained of, had neither disturbed or evaded the into a street called the High-street. The distance plis.' right of ferry, and that no usage had been from Poplar to the stairs by this road was about one proved to establish such a right as was contended mile and three-quarters. The way was a public way, for. and was known by the name of the Manor-way. The part of the island which abutted on the Thames was surrounded by a bank or wall of earth to protect it from inundation; the said bank or wall of earth was tortuous in its course, following the indentations of the river, and was a portion of the general embankment, or river wall, running along that side of the river, traces of which, extending beyond the Isle of Dogs, and as far as Southend, which lies at the month of the river Thames, exist to this day. The said wall was watched by people whose duty it was to see that it was in a fit state to keep out the high tides, and earth was added to the top from time to time as casion required for that purpose; in fine weather the top of the wall was used as a road by persons prefering to go round by the water; it had become a más road, though not kept in repair. When the West Laca Docks were made, in or about the year 1800, they w made in the Isle of Dogs, and right across the way or al which led to and from Poplar and the Potter's-im stairs, in consequence of which it became necessary that the road should be diverted, which was done, and the road was carried to the distance of half-a-mile in an easterly direction, over the bridges built at the entrances of the West India Docks and so into Poplar. Adjoining Poplar on the east is Blackwall, all the neighbourhood of which is comparatively modern. Here a pier has been erected, called the Brunswick-pier, and from this about sixteen years ago steamboats began to run to and from a point in Greenwich, close to the ferry landing-place, and such steamboats have continued to run there ever since. From High-street, Poplar, to the Brunswick-pier, Blackwall, the distance is half-a-mile; from High-street, Poplar, to Cubitt'spier, hereinafter mentioned, the distance is one mile and a half; from the bridge at the entrance of the docks tə Potter's-ferry stairs, the distance is one mile and 920 feet by the diverted road. Steamboats run every quarter of an hour from Brunswick-pier to Greenwichpier. In 1812 an Act of Parliament was obtained, The plts. are the lessees of an ancient ferry known as the Potter's-ferry, or Isle of Dogs ferry, from the Isle of Dogs, in the county of Middlesex, to Greenwich, in the county of Kent. By an indenture, dated the 7th June 1676, and made between Lady Hentworth and others of the one part, and John Warner, John Keeley and Thomas Jones of the other part, it was witnessed that, for the consideration therein mentioned, the said Lady Hentworth and others, at the nomination of the said John Warner, did grant, empoll, release and confirm unto the said John Keeley and Thomas Jones all that their ferry and ferry place, commonly called or known by the name of "Potter's-ferry," with the ferryage, waftage and passage for men, horses, beasts and all other cattle and carriages whatsoever over the river of Thames, lying, being and extending itself from a place or marsh called the Isle of Dogs, or Stebonheath-marsh, within the said manor, over the said river of Thames into the town of Greenwich, in the county of Kent, and free liberty of carrying, ferrying and transporting men, horses, beasts, and all other cattle and carriages whatsoever, to and from the said marsh into and from the said town of Greenwich, with wherries, flat-bottom ferry-boats, or otherwise howsoever, together with all profits and advantages of ferryage, waftage and passage, and all other commodities, emoluments and appurtenances to the said ferry belonging, or in anywise appertaining, or reputed or taken as part, parcel, or member thereof, in as full, large and ample manner as the same hath been at any time heretofore demised, granted, letten, used, occupied, or enjoyed, to hold the same unto and to the use of the said John Keeley and Thomas Jones, their heirs and assigns for ever. By road, af the last built of but an to bail on the public than - B.] er NEWTON V. CUBITT. The present contest has reference to the eastern side of the island, as to which the owners or lessees of the ferry claim the sole and exclusive right of ferrying all persons passing from any point of the shore to the opposite shore, from Deptford-creek to Charlton, a distance of three miles. It appeared, in evidence on the trial, that, on many occasions, the lessees of the ferry, on seeing watermen or others, not authorised by the ferry society, conveying passengers from this part of the Isle of Dogs to Greenwich, have interfered, and either prevented such unauthorised persons carrying such passengers, or have caused them to pay over the passage-money received by them from such passengers. It is contrary to a bye-law of the Watermen's Company, made under the powers conferred upon them by the 7 & 8 Geo. 4, c. 75, for a waterman to take passengers from an unlicensed place, and he is liable to a penalty for so doing. On the other hand, it appeared that watermen not authorised by the society were often in the habit of conveying passengers from the Isle of Dogs, especially from the Folly-house, a public-house on the shore, to Greenwich, but it does not appear that this was done with the knowledge of the society, or their lessees. The right of the society was enforced by proceedings at law in the following instances: [C. B. the provisions of which the before-mentioned side of the island is not now in dispute. It was or-road was improved and altered into a carriage-established in the action of Giles v. Groves, Blacketer , after which it was called the Ferry-road. Within v. Gillett, and Douse v. Matthews, hereinafter relast thirty years the Isle of Dogs has been much ferred to. ton, both on the east and west side of the said road, until the year 1846, when the deft. Cubitt began uild as hereinafter mentioned, there was no building he island on the east side of the said road except a lic-house, called the Folly-house, which was situate he banks of the river, and was distant rather more n a mile from the ferry stairs. Within the last 7 years factories and workshops and houses have n built on the island, and it now contains many inbitants. In the year 1842 the deft. becaine possed of a large track of land on the east side of the d island, and east of the said ferry road, and utting on the river Thames. He made an emnkment along the whole of the river frontage of this ad, filling up the whole indentations of the river wall, ich was thereby rendered unnecessary, and was, in ct, obliterated; he drained the whole of the land and gan to build on it, where it was previously a marsh nd uninhabited, and has built there many houses, actories and a church, and the buildings are still regnarly progressing. This part of the island, at the ime of the alleged grievance, contained about 3000 nhabitants, and was called or known as Cubitt's-town. The deft. Cubitt also constructed a dock and wharf and a landing-place, called Cubitt's-corner. He also made roads over the part of the island built upon by him, and in the year 1857 erected a per extending 138 feet into the river for the use of the inhabitants of Cubitttown. This pier is distant three-quarters of a mile along the shore of the river from the Potter's-ferry stairs, and about one mile and a quarter from Gardenstairs, Greenwich. The distance by the road between the pier and the Potter's-ferry stairs is 1282 yards. The pier and steamboats are an accommodation to persons desirous of proceeding from Cubitt's-town to Greenwich, as it is more convenient to cross direct by the steamboats than it is to proceed across the island and then across the river by the ferry-boat. In the year 1847 the existence of the ferry right was brought in question in an action of Giles v. Groves, in the Court of Q. B., in which action it was found by the jury, and adjudged by the court, that a ferry right from the Isle of Dogs to Greenwich did exist, and that the fee-simple thereof was vested in the trustees of the said Isle of Dogs Ferry Society. Afterwards, in the year 1849, one Gillett denying the right of ferry in the company to ferry passengers from the Isle of Dogs to Greenwich otherwise than from Potter's-ferry stairs, plied for passengers from a certain place in the Isle of Dogs, called Johnson's-corner, situated on the south side of the island, and about 200 yards below the said Fotter's-ferry, and conveyed passengers from the said Johnson's-corner to Greenwich, whereupon the Isle of Dogs Ferry Society, by one Blacketer, their then lessee, brought an action against Gillett, which was tried in the Court of C. P. at Westminster, in the year 1849, when it was found by the jury, and adjudged by the said court, that the said Gillett had disturbed the lease of the said ferry society in the enjoyment of the said ferry. This being the altered state of things on the eastern shore of the island, the deft. Cubitt in the month of June 1858 hired a steamboat and caused it to ply from the said pier to the Greenwich-pier, which adjoins Garden-stairs. It was found by the jury at the trial, and must be taken as a fact, that he did this with the bona fide object and intention of affording necessary accommodation to the inhabitants of Cubitt's-town, and not with any object or intention of diverting passengers from the said ferry, or in any wise injuring the right of its owners, though it might, to a small extent, The deft. Cubitt having constructed the dock and have that effect. The deft. Voiley was the master of wharf as before stated, and also the landing-place the said steamboat which plied between Cubitt's-pier and called Cubitt's-corner, situated 630 yards below the Greenwich, from the time it was so laid on to the Potter's-ferry landing-place, caused a finger-post to commencement of the action. It is to try the right be erected on the Isle of Dogs, pointing towards the of the deft. to convey passengers by this steamboat place called Cubitt's-corner, on which post was painted that the present action was brought. The ferry "This way to Greenwich," and one Mathews comcompany have at all times claimed the exclusive menced plying with a boat for the conveyance from right to convey passengers from all parts of the Isle Cubitt's-corner to Greenwich of passengers in general, of Dogs to the opposite shore; but it appeared that whereupon the Isle of Dogs Ferry Society, by one on the western side there are two landing-places, called Doust, their then lessee, brought an action against the the King's Arms-stairs and the Cocoanut-stairs; the said Mathews for disturbance of the said ferry beformer distant about a mile, the latter about half-a-longing to the society, which action was tried in the mile from the Potter's-ferry stairs; and from these stairs, on the western side, watermen, not members of the ferry company, nor using boats belonging to the company, have, in very numerous instances, embarked and conveyed passengers from Greenwich, without obstruction or interference on the part of the company. There was, however, no positive evidence that this was known to the ferry company, further than the same might be inferred from the frequency of the practice. The right of the company as regards the southern Court of C. P. in 1856, when by the said court it was also adjudged that the said Mathews had infringed the right of the ferry belonging to the society. Upon the trial of the present action, it appeared that in the year before the defts.' steamboat commenced running, the owners of the Isle of Dogs Ferry let the same for the sum of 470l. per annum; whereas, since the boat commenced running, the ferry has produced less than half that amount. It was also proved that the defts. have conveyed not only the occupiers of the new houses at Cubitt's-town, but also other persons coming from other places, and who | 5 E. & Bl. 546; Churchman v. Tural KAF would otherwise have crossed from plts.' ferry-stairs to Pinn and others v. Curell, 6 M. & 5.254: Greenwich, and who therefore had been diverted by the v. Franks, 4 T. R. 666; Yard v. Find 2 Sami said pier and steamboat; but it also appeared that, 171; and Holcroft v. Heel, 1 Bos. & P 400 with one or two exceptions, the persons were not perCur, act. nk sons coming from Poplar, but persons living at East and West Greenwich and Woolwich, and working at the East and West India Docks, and who used the steamboats in going to and from their work. The only persons who used the steamboats in coming from Poplar to Greenwich was a man residing at Greenwich, who worked in Poplar, and who sometimes went by the steamboats from Cubitt's-pier and sometimes by the ferry-boat from Potter's-ferry landing place, but who, when pressed for time, went by the ferry-boat. Another witness of the plts. proved, that when working in the East India Docks, which are in Blackwall, he used to go to and from Greenwich (where he resided) by the steamboats from Cubitt's-pier, but when working at Millwall, which is in Poplar, he used to go to and from Greenwich by the Potter's-ferry. Upon this state of facts it was contended for the defts., first, that the plts.' right of ferry did not extend to the east side of the island; secondly, that the steamboats having been run bona fide for the accommodation of the inhabitants of Cubitt's-town, the conveyance thereby of passengers from the pier there was not a disturbance of the plts.' right of ferry. On the other hand, it was contended for the plts., that the plts. were entitled to the right of ferry in respect of all persons passing from the said Isle of Dogs to Greenwich as well as those persons who had been accustomed to pass over the plts.' ferry before the new houses and buildings were erected, and that the running of the said boat and the conveyance of the passengers therein by the defts. as aforesaid, was a disturbance of the plts.' right of ferry, for which the plts. were entitled to maintain the action. The Lord Chief Justice left it to the jury to say first, whether it had been the intention of the defts., by establishing the said steamboats and conveying the said steam passengers, merely to accommodate the occupiers of the new said houses and buildings, or also to interfere with the traffic by the ferry of the plts.; and, secondly, whether besides conveying the occupiers of such new buildings and houses, it had had that effect. The jury found that it was not the intention of the defts., in running the said steamboats, to divert traffic from the plts.' ferry by establishing the steamboat and conveying passengers as aforesaid, but merely to accommodate the occupiers of the said houses and buildings, but that besides the conveyance of the occupiers of the said new houses and buildings, it had, to a small extent, had that effect, whereupon a verdict was entered for the plts., subject to the opinion of this court. The questions for the opinion of the court are1. Whether, upon the facts stated, the conveyance of passengers from Cubitt's-town amounted to a disturbance of the plts.' right of ferry. 2. Whether the conveyance of other passengers than those coming from Cubitt-town amounted to a disturbance of the plt.'s right. If either of these questions should be answered in the affirmative, the verdict is to stand, with such damages as shall be found to have been sustained by plts. on the certificate of an arbitrator, to be agreed upon by the counsel on both sides. If not, the verdict is to be set aside and entered for defts. The court to be at liberty to draw any inferences of fact not inconsistent with the finding of the jury. Pigott, Serjt. (J. J. Powell with him) for the plts. Lush, Q.C., Raymond and Humphery for the defts. In the course of the argument the following cases were cited:-Pain v. Patrick, Carth. 192; Huzzey v. Field, 2 C. M. & R. 433; Mathews v. Peache, ERLE, C. J.-In the first count of the decan the pit. complains that the deft. had carried pe sengers in the line of his ferry. In the second, that i had so done near the line of the said ferry for the pas pose of evading it. The deft. carried to Great passengers from Cubitt's-pier, which is on the enz side of the Isle of Dogs, distant 1250 paris 22 Potter's-ferry stairs on the south of that sie Ta area of the isle is about one square me ba bounded by the Thames on three sides out of fraz, b was an uninhabited marsh down to 1800, with one miniway from Poplar on the north to Potter's-lary sas on the south, and at that time the passengers pasarg along that road comprised all the passengers in the Isle of Dogs. Since 1800 it has become, and now à, populous and covered with manufacturing and amercial establishments. Cubitt's-pier was ce for the accommodation of Cubitt's-town, built on the bas of the Thames at some distance from the roadway before mentioned, and only connected therewith by ways which the owner of the land has chosen to dedicate ta the public. Upon these facts the questions ar, fr, did the defts. carry within the line of the pis ferry: and if not, then, secondly, did they carry near it for the purpose of evading it? In order to answer the first question, the extent of the plt.'s ferry most be ascertained. The plt. claims the exclusive right d carrying all who pass from any part of the Isle Greenwich. In support of his claim he relies on the deed of 1676 and on usage. A part of the description of the ferry in the deed of 1676, taken by itself, tends a support this claim. "All that ferry, extending its from a place or mark called the Isle of Dogs, over the Thames unto the town of Greenwich." But, althoug these words may mean that every person passing fra the Isle of Dogs to Greenwich must go by this fery, there are other parts of the description which refer to usage, so that the extent must be ascertained there. It is a ferry commonly called and known as "Potter's ferry." Usage must prove the application of this description. The concluding words also, viz, "is ample a manner as the same hath heretofore been used, occupied, or enjoyed," make the limits depend on usage. Furthermore, the nature of the franchise seems to be repugnant to the plt.'s claim of a ley from every part of the isle indiscriminately. A fay exists in respect of persons using a right of way wire the line of the way is across water. There must be a line of way on land coming to a landing place on the waters edge (as in this case to the Potter's-fe? stairs), or where the ferry is from, or to a vill, fra or to one or more landing places in the vill. 1 franchise is established to secure convenient passage, and the exclusive right is given because in an unpyalous place there might not be profits sufficient to matain the boat, if there was no monopoly. The ferry s unconnected with the occupation of land, and exists only in respect of the persons using the right of way. The question whence they come and whither they are irrelevant to the exercise of that right, and the ferryman has no inchoate right in respect of any £ them unless they come to his passage. Such being the nature of a ferry, the notion that a large area of land should be subjected to servitude, and therefore that the owners and occupiers thereof should be prohibited from using the highway of the Thames as they may choose, and should be under an obligation to get to the highway leading to Potter's-ferry stairs, and cross to Greenwich only therefrom is anomalous; and I Cubitt's-town had been built without a way thereon to the road to Potter's-ferry, the performance of the C. B.] NEWTON V. CUBITT. [C. B. upposed obligation would necessitate a trespass. The prayed to stop him. The deft. contended that the ases in the nature of a ferry are few, and we restraint which the plt. would lay on others was ite only Pain v. Patrick. There the court decided uncertain and at too great a distance; and the court hat "case did not lie for an obstruction of a decided for him, because it came too near to a monopoly, highway without special damage. That a passage over and restrained trade. The decision by Lord Hale behe water is of the same nature as a highway for all tween the same parties is said, in Huzzey v. Field, to eople; and that the plt., who claimed as an inhabi- have been different; but neither the point of law nor the ant of Littleport, had not the passage as such inhabi- facts on which Lord Hale acted are stated. In Tripp v. cant, but as a subject. If the line of the plt.'s ferry Frank, the plt.'s ferry was from Hull to Barton, the deft. be taken to be Potter's-ferry stairs only, and not from carried from Hull to Barrow, two miles below Bartonthe whole isle, the deft.'s have not carried in that line, on-the-Humber, the judgment was for the deft. Lord and the first count fails. The second count, that the Kenyon says: "If a person, wishing to go from Hull deft.'s carried near the line of ferry for the purpose of to Barton, had applied to the deft. and he had carried evading it, raises another question. The owner of the them a little above or below the ferry, it would be a ferry has a cause of action for carrying in the line of the fraud on the plt.'s right, and a cause of action." But ferry, whether it be done directly or indirectly, he has a here these persons were substantially and not colourright to the transport of the passengers using the way; ably carried to a different place; and Ashurst, J. adds and if the alleged wrong-doer makes a landing-place in effect: "It is unreasonable to require that a person near to the ferry landing-place, so as to be in sub-crossing the Humber must be carried out of his stance the same, making no material difference to tra way on account of the plt.'s ferry." In Huzzey vellers, such a wrong-doer would be guilty of the wrong v. Field, the plt. had a ferry from Nayland to Pemcomplained of in the second count; because he would broke Point, the main highway from Haverford to indirectly carry in the line of the plt.'s ferry. Then Pembroke, passed by Nayland, and thence over the has the deft. done this wrong? We think not. Cubitt's- water to Pembroke Point, and so to Pembroke. Aftertown is at such a distance from Potter's Ferry as is wards traffic to Milford Haven increased, and Patersubstantially important for those who have to pass dock was built, and a landing-place at Hobbes' Point, therefrom to Greenwich, and it is found that the deft. half a mile from Pembroke Point, was made, it being had not the purpose of evading the plt.'s ferry or of required for the accommodation of traffic in lines diverting traffic therefrom. The principle by which to other than that from Haverford to Pembroke. The decide whether the proximity of a new passage across deft. took a passenger in his boat from Naythe water to an ancient ferry is actionable has not land Point, who, when afloat, ordered him to been clearly laid down; it seems reasonable to infer, Hobbes' Point, saying he was going to Pembroke. The if the franchise of a ferry is established for facility question was, whether these facts proved a disturbance of passage, and if the monopoly is given to secure con- of the ferry, and it was answered in the negative. venient accommodation, that a change of circuin- The court describes a disturbance to be either by carstances creating new highways on land would carry rying from point to point in the line of ferry, or by with it a right to continue the line of those ways across constracting a landing-place at a short distance from a water highway, and it is obvious that the single one terminus of the ferry, and carrying passengers landing-place, which sufficed for an uninhabited marsh, thereto who were in reality passing along the line of would be utterly inadequate for several towns thronged way on which the ferry is situate. But, as it appeared with industrial mechanics. If one hundred of such in the case there were other places than Pembroke to labourers pass now to Greenwich where one traveller which the passengers might be going from Hobbes' passed in 1800, it seems oppressive to fix on such Point, without or before going to Pembroke, and, if a large number of labourers the perpetually re- there was a convenience to him in landing at Hobbes' peated loss of three-quarters of a mile of walk- Point, which he could not have had by landing at ing for the sake of the small fraction of the Pembroke Point, he would not evade the plts.' ferry toll which is the profit to the ferryman on by landing at Hobbes' Point. In the two last cases each passenger, and unreasonable so to increase that the ferry was backwards and forwards, and the quesprofit. If the public convenience requires a new tion arose in respect of the terminus ad quem. The passage at such a distance from the old ferry as makes law would have been precisely the same as far as the it to be a real convenience to the public, the proximity consideration of convenient accommodation operates, if seems to us not actionable. The authorities do not the question arose respecting the terminus a quo, as it define, either in respect of ferries or markets, or the necessarily does in this case, where the ferry is only like, what proximity is actionable. Fleta, lib. 4, one way. But these general principles and their spec. 28, s. 13, describes the proximity of a new cific application to Potter's-ferry were considered market which is actionable, to be seven miles, on the in Matthews v. Peache, and the judgment is very calculation of twenty miles a-day for each person decisively in point for the deft. The information travelling, and he therefore allows seven miles out and was for plying as waterman without a licence; the deseven back, and time for marketing besides. Such a fence was, that the deft. was exempt as a ferrylimit on such a reason might be suited to the simple man, ferrying in Potter's-ferry from Cubitt's dock, wants of a rude life where inhabitants are few, but is which is 800 yards from Potter's-ferry stairs to unfitted for large towns, where daily wants are greatly Greenwich. The Court decided: First, that the multiplied. Under the latter circumstances, it seems ferry is from the stairs, and not from the Isle that the area within which a new market would become of Dogs to Greenwich; the indefinite words of actionable would be diminished from a diameter of fourteen miles by the public need, and on the same reason the area for the monopoly of a ferry would depend on the need of the public for passage. We now proceed to the cases. The dictum of Pastor, in 11 Hen. 6, 14, only affirms that case will lie for infringing the right of a ferryman, and does not touch the question of proximity. In Churchman v. Tunstall, the complaint by English bill was, that the deft. carried over the Thames, in Brentford, three-quarters of a mile below the plt.'s ferry for horses and passengers, and an injunction was the conveyance being defined by the exercise of the right, and that therefore the exemption for ferries did not extend to Cubitt's dock, distant 800 yards. A fortiori, it does not extend to Cubitt'spier, which is 1280 yards distant from the ferry. Therefore, upon principle and authority, it appears that the plt. have neither the privileges nor the burdens of a ferry from Cubitt's-pier; that all the Queen's subjects being at Cubitt's-pier, whether from Poplar or elsewhere, have the right to use the highway of the Thames therefrom, either to Greenwich or elsewhere, at their free will and pleasure, either by wherries or |