Eaton v. The Swansea Waterworks Company.

John Evans, Benson, and Willes, contra, were not called upon.

LORD CAMPBELL, C. J. I am of opinion that we are bound to grant a new trial in this case, on the ground that the information and conviction were improperly rejected at the trial. The conviction would not, per se, be evidence to show an adjudication upon the right; but connected with what went before, and what followed, it was strong evidence as to the assertion of a right on the one side, and the denial of it on the other. There is a summons against Luke for unlawfully and wilfully drawing off the water from the waterworks of the defendants; and the plaintiff, being aware of that, desires his son to go and represent him at the hearing of the summons, and the son pays the 1s. fine imposed upon Luke; and the plaintiff does not appeal against the conviction, there being a right to appeal by sect. 99 of stat. 7 Will. 4, c. 52, if Luke had done no more than he was entitled to do, as we must assume the plaintiff to have known. Therefore, however small the weight to which the evidence was entitled, it ought not to have been excluded; and I cannot say that the evidence is so infinitesimally small as that it would be safe to refuse a new trial on the ground of its rejection.

feel the less regret in making the rule absolute for a new trial on that ground, because I do not think the issue on the enjoyment as of right for twenty years was satisfactorily found by the jury. The judge left the question to them, "Have the occupiers of the Home Field enjoyed as of right for twenty years, up to the 1st of February, 1851, a watercourse running through that field?" The answer was, "Yes, and without interruption for a year," not without any interruption. This leads me to believe that the jury thought that there was a perpetual warfare going on between the parties; and therefore they may have thought, that though the watercourse was claimed as of right, it was not enjoyed as of right; and they might have come to that conclusion if the question had been differently left to them. If an interruption is not acquiesced in for a year, it does not destroy a right acquired; but when the jury have to determine the question whether the watercourse was enjoyed as of right, the fact of interruption is of material importance, if it occurred during the period of twenty years. It appears to me, therefore, that it will be satisfactory that the case should be submitted to another jury, for the purpose of receiving a more distinct direction as to whether there had been an enjoyment as of right for twenty years.

PATTESON, J. The circumstances make the conviction of Luke the same as if it was the conviction of the plaintiff himself; and I am of opinion that it was receivable on a matter which was in litigation between the parties.

As to the interruption, the words of sect. 1 of stat. 2 & 3 Will. 4, c. 71, are, "where such right shall have been actually enjoyed by any person claiming right thereto, without interruption, for the full period of twenty years;" and the words "claiming right" must have the same meaning as the words "as of right," in sect. 5, which enacts, that it

In re Simpson's Trust Estate.

shall be sufficient in pleading to allege the enjoyment of the right "as of right." No specific question was left to the jury whether the watercourse was enjoyed without interruption, but only whether it was enjoyed as of right. It was ambiguous what the jury meant by saying that it was enjoyed without interruption for a year. The question ought to have been left more distinctly to them.

COLERIDGE, J. I will only add, that the remarks made by my lord on the finding of the issue as to the enjoyment of the right are very material generally. It is material upon the issue whether an easement has been actually enjoyed as of right, to show what the nature of it is, and what the interruptions were. Though no interruption, which is for less than a year, will prevent the enjoyment being found as of right, many interruptions, however short, will prevent the right being acquired.

ERLE, J. The plaintiff alleges that he acquired a right by twenty years' user: the defendants had from time to time stopped up the channel, which the plaintiff had from time to time opened. The question for the jury was, whether the plaintiff had an enjoyment of the watercourse for twenty years as of right. There is some difficulty in giving a precise meaning to the words "as of right;" but where the act of enjoyment is at all clandestine or forcible, or on request, it is not "as of right."

And the piece of evidence which was rejected has a material bearing on the question of right, looking to the plaintiff's conduct upon an information being laid against his servant for that which he asserts was a lawful act. I think that the information and conviction were admissible in evidence, and relevant to the issue whether the enjoyment was of right; and therefore the defendants have made out satisfactorily a ground for a new trial. Rule absolute.

In re SIMPSON'S TRUST ESTATE.1

Easter Vacation, May 12, 1851.

Maintenance of insane Pauper - Seizure and Sale of his Goods and Chattels Deed of Lunatic.

By sect. 2 of stat. 3 & 4 Vict. c. 54, two justices are empowered to direct the overseers of any parish, "where any money or securities for money, goods, chattels," &c., of an insane person" shall be, to seize so much of the said money, or to seize and sell so much of the said goods and chattels," as may be necessary to pay the charges of maintenance.

In 1842, R. S. mortgaged an estate to E. L., and in 1845 was tried for murder, and acquitted on the ground of insanity, and ordered to be contined during her majesty's pleasure. Three days before his trial, whilst a prisoner, he conveyed the estate in question, subject to the mortgage, to trustees, in trust to sell, and apply the purchase money (after payment of incumbrances and the costs of his defence upon his trial) for his children. Sub

1 15 Jur. 754.

In re Simpson's Trust Estate.

sequently, E. L., under the power in the mortgage deed, sold the estate, and after satisfying the principal and interest and costs, a balance of 1901. remained in his hands. R S. having been removed to a lunatic asylum, an order adjudicating his settlement and of maintenance was made upon the overseers of the parish of H.:

Held, that no order could be made under sect. 2 of stat. 3 & 4 Vict. c. 54, directing the overseers of H. to seize the balance in the hands of E. L. for satisfying the charges of maintenance of R. S.

Semble, that the deed executed by R. S., conveying his estate to trustees, was valid.

RULE calling upon Edward Langhorn to show cause why a writ of mandamus should not issue, commanding him to pay over a balance of certain purchase moneys to the overseers of the poor of Old Hutton, in the county of Westmoreland. It appeared from the affidavits that Richard Simpson, being seized in fee of an estate in Old Hutton, by indenture, dated the 12th of February, 1842, conveyed the same to Edward Langhorn, by way of mortgage, for securing 500l. and interest, with the usual powers of sale. In August, 1845, Simpson was put upon his trial for murder, and was acquitted on the ground of insanity, and ordered to be confined during her majesty's pleasure. Three days before his trial, and whilst he was a prisoner, by indenture, dated the 6th of August, 1845, he conveyed the estate in question, subject to the mortgage, to trustees, upon trusts for sale, at their discretion, and in the mean time to receive the rents and profits thereof; and as to the purchase money and rents, (after payment of incumbrances and the costs of his defence upon his trial,) upon trust for such of his two sons as should live to attain the age of twenty-one years. The trustees took upon themselves the trusts, entered into possession of the rents of the estate, and attempted to sell it, but did not succeed; and subsequently Langhorn, as mortgagee, entered into possession, and sold the estate, under the power in the mortgage deed, and after satisfying his principal and interest, and costs, a balance of about 100l. remained in his hands. The trustees, under the deed of 1845, claimed this surplus, but Langhorn objected to pay it to them, upon the ground that Simpson, when he executed the deed, was insane. For some time after Simpson's acquittal he remained in Appleby jail, and within a year after was removed, under an order of the secretary of state, upon a certificate of two justices that he was insane, to the lunatic asylum at Gateshead, where he still remained. The costs for his maintenance were for some time paid by the county, until two justices made an order, adjudicating his settlement to be in the township of Old Hutton, and ordering the overseers of that township to pay the costs of his maintenance, under sect. 2 of stat. 3 & 4 Vict. c. 54, by which it is enacted, that if it shall appear upon inquiry to the said justices that such person is possessed of property, such property shall be applied for or towards the expenses incurred on his behalf, "and they shall from time to time, by order under their hands, direct the overseers of any parish, where any money, or securities for money, goods, chattels, lands, or tenements of such person shall be, to seize so much of the said money, or to seize and sell so much of the said goods and chattels, or receive so much of the annual rent of the

In re Simpson's Trust Estate.

lands or tenements of such persons, as may be necessary to pay the charges, if any, of inquiring into such person's insanity, and of removal, and also the charges of maintenance, &c., of any such insane person," &c. In pursuance of that order, the township of Old Hutton had since wholly maintained him. The overseers of that township subsequently obtained an order of two justices for recovering the amount expended by the township in his maintenance from his estate, and thereupon demanded from Langhorn the surplus moneys remaining in his hands from the sale of the mortgaged

estate.

Crompton showed cause. Any creditor of the lunatic would have an equal right to apply for this writ.

[Lord Campbell, C. J. What other remedy have the overseers? Might they present a petition to the lord chancellor?

Patteson, J. The 2d section of stat. 3 & 4 Vict. c. 54, seems to apply to an order for such things as the overseers can take into their manual possession; they have no authority to sue for or to recover a debt.]

This money is a debt to the trustees; and money in the hands of the sheriff, being the balance of the proceeds of a sale of goods, by virtue of a fi. fa., cannot be seized under sect. 12 of stat. 1 & 2 Vict. c. 110, which has similar words to those in this section. Robinson v.

Peace, 7 Dowl. 93. Harrison v. Paynter, 6 M. & W. 387. Wood v. Wood, 4 Q. B. 397; s. c. 7 Jur. 325. At any rate, the court will not assist the overseers in throwing upon the trustees the responsibility involved in acting under the mandamus, without any indemnity.

Cowling, contra, for the parish officers. The trustees under the deed, executed by the lunatic while he was in prison awaiting his trial, can have no claim upon the moneys. Further, the deed was executed by a lunatic.

[Lord Campbell, C. J. It may have been executed during a lucid interval.]

Then it is fraudulent as against the crown, being executed for the purpose of avoiding a forfeiture, which would be the consequence of a conviction, and is, therefore, void. Holt, C. J., in Jones v. Ashurst, Skinn. 357.

[Lord Campbell, C. J. Is there any case in which such a deed has been held void after the acquittal of the party?]

No; but the validity of the deed depends upon the motive with which it was executed. The mandamus will not throw a greater onus upon Langhorn than is thrown upon parties in similar cases; if he is entitled to an indemnity, it should be given by the trustees, and not by the parish officers, who are not acting for their own benefit. Langhorn is debtor to the lunatic.

[Lord Campbell, C. J. You must contend that the justices have power to make an order upon the debtor of the lunatic in respect of goods sold; that would give the justices jurisdiction to try the validity of the debt. In this case there is no money ear-marked for which

Rackham v. Blowers.

trover would lie. But there may be a dispute to whom Langhorn is debtor; he may be trustee for some other person.]

Debts have been held to pass under the term "goods and chattels.” [Patteson, J. How do the words of sect. 2 of stat. 3 & 4 Vict. c. 54, give a right to the justices to deal with a debt due to the lunatic? If the debtor had lands in a parish in Cornwall, or goods in a parish in Northumberland, there must be an order on the overseers of each parish.]

The court will let the writ go, in order that the question may be raised on the record.

[Lord Campbell, C. J. It would be an extreme hardship on the mortgagee in this case that he should be required to try that question.] It is not sought to take money out of the pocket of Langhorn.

A. W. Hoggins appeared for the trustees.

LORD CAMPBELL, C. J. The case is not brought within sect. 2 of stat. 3 & 4 Vict. c. 54. Whether there is any other remedy for the overseers, it is not for us to say. The remedy by mandamus is not open to them.

PATTESON, J. The words of sect. 2 of stat. 3 & 4 Vict. c. 54, are not at all clear; but this case is not within it.

Rule discharged, without costs.

[APPEAL FROM COUNTY COURT.]

RACKHAM V. BLOWERS.1

Easter Vacation, May 14, 1851.

County Court Appeal-13 & 14 Vict. c. 61, s. 14.

The appeal given by stat. 13 & 14 Vict. c. 61, s. 14, applies only to judgments of county courts, and not to orders of committal under the 99th section of stat. 9 & 10 Vict. c. 95. Semble, the production of a certificate in bankruptcy granted to a defendant, after the obtaining of a judgment against him in a county court, is a sufficient answer to a summons under the 98th section of stat. 9 & 10 Vict. c. 95.

THIS was an appeal against an order of the judge of the County Court of Norfolk, at Great Yarmouth. A plaint had been levied in the above court, in an action of contract, for 177. 3s. 4d. The defendant was duly summoned, judgment given against him for the debt and costs, amounting together to 201. 17s., and an order made thereon. for payment forthwith. On the 17th of March, 1849, (after the plaint had been levied,) the defendant was adjudged a bankrupt, and, having passed his last examination, obtained his certificate under the 12 & 13 Vict. c. 106. The judgment remaining unsatisfied on the 10th of

1 15 Jur. 758. This appeal was argued before PATTESON and ERLE, JJ.