defendant, a riparian proprietor above B.'s land,
for drawing off the water of the stream at a
point above the weir:-Held, that the action
was maintainable. Nuttall v. Bracewell, Ex. 1
Per Martin, B.-The right to have a flow of water
through another man's land to work one's mill
is the subject of property and of grant, and not
merely of licence. And even assuming that, as
the agreement was not under seal, sixty years'
possession did not confer a good title as against
B, yet the actual possession and enjoyment of
the goit gave the plaintiff a valid right of action
against the defendant, a wrongdoer. Ibid.
Per Bramwell, B.-The plaintiff was the grantee
of a right or mode of enjoyment which it was
competent to B. to grant to him; and as such
grantee he could maintain actions against those
who disturb him. Ibid.

Per Channell, B.-The plaintiff was riparian pro-
prietor with respect to the goit, and had all
corresponding rights to the water of the natural
stream, though flowing in an artificial channel.
Ibid.

The doctrine laid down in The Stockport Waterworks
Company v. Potter considered. Ibid.

WAY-excess of right of way: question for jury]—
The owner of field A, who had a right of way
over the plaintiff's close, for the more convenient
use of A, made a gateway from field B. into A,
mowed both fields, stacked all the hay in A,
and some months after sold the whole hay to
the defendant, who carried it all away over the
said way. The plaintiff brought an action of
trespass; the defendant justified under the right
of way, and the plaintiff new assigned :-Held,
that whether there had been an excess of user
was not a question of law; but that it was a
question of fact for the jury whether the stacking
and carrying away was a reasonable and proper
user of the way for the purposes of A, or merely
colourably so, and really for the purposes of B;
and on their finding that the former was the
case, the defendant was entitled to the verdict
on the new assignment. Williams v. James,
C.P. 256

obstruction: evidence of special damage entitling
plaintiff to sue: presumption from acts of user]—
When a public way is obstructed, an individual
cannot bring an action against the obstructor,
unless he has sustained some special damage
apart from that sustained by the rest of the
public, and his being obliged by the obstruction
to turn back and proceed by a less direct route,
or to remove the obstruction, and his being
delayed and put to expense in doing so, will not
be sufficient. Winterbottom v. Derby, Ex. 194
From evidence of acts of user of a footway by the
public extending over the whole time of living
memory, during which time, however, the land
over which the way passed had been under lease,
a jury may presume against the reversioner a
dedication of the way by his ancestors to the
public at a period anterior to the land having
first been leased. Ibid.

WEIGHTS AND MEASURES-Sale of bread other-

wise than by weight. Jones v. Huxtable, Q.B.
325; M.C. 122

WILL-devise without words of limitation: inference
from direction as to education of children]-The
following devise made before the Wills Act,—
"As touching such worldly estate wherewith it
hath pleased God to bless me in this life, I give
and bequeath to my well-beloved wife M. A,
whom I likewise constitute, make and ordain
my sole executrix of my last will and testament,
all and singular my lands, messuages and tene-
ments, by her freely to be possessed and enjoyed,
together with all my houses and household goods,
deeds and movable effects; all my children to
be educated and settled in business according
to my wife's discretion,"-was held to carry the
fee to the executrix, as the testator must be
presumed to have meant to confer upon his wife
such an estate as would secure her from loss in
carrying out his directions, whether they were
obligatory or not. Lloyd v. Jackson (Ex. Ch.),
Q.B. 169

construction of, as to a power to lease mines]—
Testator devised certain real estates to his
daughter for life, with power to her to appoint
them by will to certain persons, relatives of the
testator, and the heirs of their bodies respec-
tively, and in default of such appointment to
other relatives in tail male in succession, with
an ultimate remainder to the right heirs of the
testator. And a power was conferred upon the
daughter to make a settlement under certain
circumstances upon any husband with whom
she might intermarry. There was then a power
to the daughter, and all other persons who might
become possessed of the estates under the limita-
tions of the will, to grant leases of any of the
real estates not appropriated to the payment of
debts for the term of twenty-one years, reserving
the best improved rent, and also to contain a
special reservation empowering the daughter,
during her life, and such other persons as might
become entitled to the real estates after her
decease, and their assigns, labourers and work-
men, to search for and take the coal, iron ore,
and other minerals from the mines under the
lands leased. And there was then a provision
that neither the daughter, nor any one taking
under the limitations of the will, should cut
down any wood or timber until the expiration
of twenty years; and then a power to the
daughter to work or contract for, lease or set
out to be worked, the coal and other minerals
in the mines, with the direction that the issues,
proceeds and profits arising therefrom should be
applied by the daughter, with the assent of the
trustees, in the purchase of certain real estates,
and that the interest of the moneys thus arising
before investment should likewise be applied in
the purchase of real estates:-Held, that the
daughter had no power to grant a lease of the
mines beyond the term of her own life. Jegon v.
Vivian (Ex. Ch.), C.P. 145

issue: rule in Shelley's case: estate of ancestor
limited to estate for life: estate in fee to issue by

f

NEW SERIES, 36.-INDEX, Com. Law.