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foreigners, unless in case of necessity, nor take toll or anchorage there, for that is fineable, either by presentment or in a quo warranto, as hath been shown." That is to say, that, although a subject may be the owner of the soil of a port or an arm of the sea, and may prevent others from anchoring therein, yet he cannot without a Royal *grant or charter demand toll or anchorage there,-which clearly assumes, that, if he had a Royal grant, he might take anchorage. That is an express authority to show that the claim of the owners of the soil in this case may have had a legal origin: and, if so, it seems to me that there was abundant evidence of an exercise of the claim for anchorage here, to warrant the presumption that it had a legal origin.

BYLES, J.-I am of the same opinion; and I have very little to add to that which has fallen from my Lord and my Brother Williams; but I cannot help saying that I see no reason for casting any doubt upon the existence of this very valuable right. Whether the locus in quo was part of a navigable river, or an arm of the sea, in either case it was originally vested in the sovereign. It is plain, from the deeds which were in evidence, that it is now a portion of the manor of Whitstable; and, if so, it must have been granted by the Crown to the lord of the manor at some very early time, before the statute of Quia Emptores, in 1290. The Crown cannot at this day create a manor: it can exist only by prescription. This portion, then, of this ancient manor having come to the hands of the Whitstable Fishery Company in the manner shown by the subsequent conveyances, let us see how they have exercised their rights of ownership. They have used the soil for the formation of oyster-beds; and they have as far back as living memory goes, and farther, demanded and exacted payment of a toll of 1s. from all vessels found anchoring within their fishery. That being so, they are the owners of the soil, with the right to receive a toll for anchorage there. It is said that the right to the anchorage was lost by the severance of the fishery from the terrestrial part of the manor in 1793. But that cannot be so: a manor cannot be divided by act of the parties in respect of the services due [*420 to the lord; but a division of the soil of the manor in no way interferes with the enjoyment of the rights incident to the use of the soil. As to the right to demand the anchorage, I have nothing to add. And, as to the right to enforce it by distress, the passage cited from Gilbert on Distress seems to me to be a strong authority to show that it may be so enforced. The right to anchorage is closely connected with the ownership of the soil: and, unless it could be enforced by distress, it would be next to impossible to enforce it at all, and the right would be valueless. If, then, such a right can exist by prescription, three instances are given in the evidence of its having been exercised, and its exercise acquiesced in.

The small number of instances tends rather to strengthen than to weaken the evidence of the right; because, the less demur there was in payment of the toll, the fewer would be the cases in which the right to enforce it would be exercised. I take it, then, the right is clearly established. I agree with my Brother Williams that toll, even a toll traverse, can only be taken by virtue of a grant from the Crown. That being so, this anchorage is in the nature of a toll, and possibly C. B. N. S., VOL. XI.-17

may fall within the very general words of the exemption in the charter of the Cinque Ports. But this toll had been created long before the date of that charter: and, having granted it, it was not competent to the Crown to derogate from its grant, by exempting any particular body of men from its payment.

Some observations were made in the course of the argument as to the form of the pleadings in Gann v. Johnson. But it is unnecessary to discuss that. The parties clearly went down to try the main ques tion which was involved in both actions. And, without saying that amendment would be necessary, it is enough to say, that, *421] if an amendment were necessary, it would be made, in order to advance the real justice of the case. Rules accordingly.

any

BADDELEY v. BERNAND. Nov. 2.

Under the 30th section of the County Courts Amendment Act, 19 & 20 Vict. c. 108, a plaintiff in an action of contract who obtains judgment by default for a sum not exceeding 201., is entitled to an order for costs under the same circumstances as would have entitled him to costs under the earlier County Courts Acts where he had recovered the like amount by a trial and verdict.

But the application should be made at Chambers.

THIS was an action on a contract, in which the plaintiff obtained judgment by default for a sum less than 207.

The plaintiff's attorney, upon an affidavit that the plaintiff at the time of the commencement of the action lived more than twenty miles from the defendant, applied to Byles, J., at Chambers, for an order for costs, under the 30th section of the County Courts Amendment Act, 19 & 20 Vict. c. 108, which enacts, that, "where an action of contract is brought in one of Her Majesty's superior Courts of record to recover a sum not exceeding 201., and the defendant in the action suffers judgment by default, the plaintiff shall recover no costs, unless upon an application to such Court, or to a Judge of one of the superior Courts, such Court or Judge shall otherwise direct." The learned Judge, without expressing any opinion, referred the parties to the Court.

Gray now moved for a rule to show cause why the plaintiff should not have his costs. He submitted that the obvious meaning of the 30th section of the 19 & 20 Vict. c. 108, although there had been no de*422] cision upon it, was, that, where a plaintiff obtains judgment *by default for a sum not exceeding 201., the Judge should have power to make an order for costs under such circumstances as would have induced him to make the order under the former statutes (a) where the plaintiff on a trial had obtained a verdict for a sum not exceeding 201.

ERLE, C. J.-The legislature, in making the provision in question, assumed that the Judge would make an order for costs upon a judg ment by default in an action of contract for a sum not exceeding 207, under the same circumstances as those under which he would have done so in case of a recovery by verdict. I think the plaintiff is

(a) See 13 & 14 Vict. c 61, ss. 11, 12, 13, and 15 & 16 Vict. c. 54, s. 4.

entitled to his costs. But, in order to save useless expense, the plaintiff had better apply to my Brother Willes at Chambers, with an intimation of our opinion.

The rest of the Court concurring,

No rule was granted.(a)

(a) The application was afterwards renewed at Chambers, and an order made.

*DANBY v. LAMB. Nov. 13.

[*423

The 34th section of the Common Law Procedure Act, 1860, which empowers the Judge to certify to deprive the plaintiff of costs where he recovers a verdict for less than 5l. in an action "for an alleged wrong," does not apply to detinue.

The 43 Eliz. c. 6, s. 2, is still in force in actions upon promises.

THIS was an action of detinue for paper-writings with the common

money counts.

The defendant paid one shilling into Court on the count in detinue, and 1621. 9s. 7d. on the money counts.

At the trial, before Erle, C. J., at the sittings at Westminster after last Term, a verdict was found for the plaintiff on the count in detinue, with 1s. damages (in addition to the is. paid into Court), and for the defendant on the other counts: and the learned Judge immediately after the trial endorsed on the record a certificate in the following form:"I certify that this action was not brought to try a right, and that the action was not proper to be brought."

On the taxation of costs, the master allowed the defendant the costs of the issues found for him, to the amount of 611. 1s., and disallowed the plaintiff the costs of the issues found for her, from the time of the payment of money into Court, by reason of the above certificate, although it was objected on her part that the certificate was inoperative as not being warranted by the 34th section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126.(a)

*A summons was afterwards taken out before Erle, C. J., for a review of the taxation, on the ground that the certificate [*424 was inoperative. His lordship referred it to the Court; whereupon Lucius Kelly moved for a rule nisi to the same effect.-The 34th section of the Common Law Procedure Act, 1860, does not apply to detinue, which is an action ex contractu: Bro. Abr. Joinder in Action, pl. 97. Trover and detinue cannot be joined: Kettle v. Bromsall, Willes 120,-trover being an action for damages, and detinue for the chattels themselves: Fitz. N. B. 138 A. [ERLE, C. J.--In Mills v. Graham, 1 N. R. 140, detinue and trover were joined.] In one sense, every action is for a wrong; but not in the sense in which the word is used in this statute.

(a) Which enacts, that, "when the plaintiff in any action for an alleged wrong, in any of the superior Courts, recovers by the verdict of a jury less than 57., he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues tried, or judgment passed by default, in case the Judge or presiding officer before whom such verdict is obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought."

Hance showed cause in the first instance.-This is substantially an action for "an alleged wrong" within the statute, the words of which were intended to have a larger application than those of Lord Denman's Act, 3 & 4 Vict. c. 24, s. 2. To entitle the plaintiff in detinue to succeed, there must be a wrongful detention of the thing sought to be recovered. [BYLES, J.-Do you find any authority to show that detinue has ever been classed with torts? WILLIAMS, J.-In Gledstane v. Hewitt, 1 C. & J. 565, 570,† 1 Tyrwh. 415, 1 Price P. C. 71, Bayley, B., says: "The action of detinue is an action of wrong." BYLES, J.--That case is cited in Walker v. Needham, 4 Scott N. R. 222, 1 Dowl. N. S. 220, where it was held that detinue, where the value of the chattel sought to be recovered, and endorsed on the writ of *summons, is under 20., is triable by the sheriff, under the 3 *125] & 4 W. 4, c. 42, s. 17.] Assuming detinue not to be within the 34th section of the 23 & 24 Vict. c. 126, the certificate may be amended by making it a certificate under the 43 Eliz. c. 6, s. 2, it being competent to the Judge to give that certificate any time before final judgment is actually signed.(a) [BYLES, J.--How can an action in which the plaintiff has recovered 1627. be said to be frivolous ?]

ERLE, C. J.-Upon the facts which were proved before me at the trial, I was of opinion, that, if the law allowed it, the defendant was entitled to a certificate to deprive the plaintiff of costs. The declaration consisted of a count for money received by the defendant to the use of the plaintiff, upon which the defendant paid into Court 162/ 9s. 7d.; and there was a count in detinue for papers, on which 1s. was also paid into Court. The jury found that enough had been paid in under the money count, and that one document had been detained, in respect of which the plaintiff was entitled to 1s. damages beyond the sum paid into Court. The question is, whether, under these circumstances, I had power to certify to deprive the plaintiff of costs, under the 34th section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126. I am of opinion that I had not,-that that section does not empower the Judge to deprive the plaintiff of costs where he recovers a verdict for less than 57. in an action of detinue. The words of the earlier part of the section are,-"When the plaintiff in any action for an alleged wrong, in any of the *superior Courts," &c.

*426] I must confess I was inclined to put a wide construction upon the words "alleged wrong." A party who wilfully detains the goods of another, in some sense commits a wrong: and, although the action of detinue has always been classed amongst actions ex contractû, I should have thought the power to certify was extended to that form of action, were it not that the whole purview of the section seems to be directed to the case where damages alone are sought to be recovered by way of compensation for a wrong. The section goes on," he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues cried, or judgment passed by default, in case the Judge or presiding officer before whom such verdict is obtained shall immediately after

(a) See Holland v. Gore, 3 T. R. 38, n., Swinnerton v. Jervis, 2 Tidd's Pr. 1004, 3 East 497, n., Foxall v. Banks, 5 B. & Ald. 536 (E. C. L. R. vol. 7), Woolley v. Whitby, 2 B. & C. 580 (E. C. L. R. vol. 9), 4 D. & R. 147 (E. C. L. R. vol. 16), Johnson r. Stanton, 2 B. & C. 621, 4 D. & R. 156 and see per Parke, B., in Morgan v. Thorne, 7 M. & W. 400,† 9 Dowl. P. C. 228.

wards certify on the back of the record, or on the writ of trial or writ of injury, that the action was not really brought to try a right besides the mere right to recover damages," &c. It seems to me, therefore, that the legislature did not intend to comprise within this enactment the case of a party seeking to recover something besides damages. Here, by the Common Law Procedure Act, 1854, s. 78, the plaintiff may have judgment to recover the chattel itself. I cannot therefore say that this is an action brought merely to recover damages for the wrong. Consequently I had no authority to give the certificate I did. Then, it is said that I may still certify under the 43 Eliz. c. 6, s. 2. But detinue is clearly in form an action ex contractû, and at the time of the passing of that Act was commonly joined with debt. Suppose, in the time of Elizabeth, a sum of 1627. 9s. 7d. had been paid into Court in an action of debt and detinue, and the plaintiff had recovered a verdict for 1s.,-could the Judge have certified that the action was a frivolous and vexatious one, although the *plaintiff had recovered

1621. 9s. 7d. upon one count, and 1s. upon the other? Clearly [*427

he could not. I think Mr. Kelly is entitled to his rule.

WILLIAMS, J.-I am quite of the same opinion. It appears from the judgment of Bayley, B., in Gladstone v. Hewitt, that, notwithstanding detinue is classed amongst actions ex contractû, the gist of the action is the wrongful detainer.(a) I should, therefore, have had no difficulty in holding the word "wrong" to include detinue, if, looking at the rest of the section, such a construction could be considered to be compatible with the apparent intention of the legislature. I agree, however, with my Lord in thinking that the contrary appears. The legislature in the 34th section of the 23 & 24 Vict. c. 126, speaks of actions which are the subject of the enactment as actions wherein the exclusive object of the plaintiff is the recovery of damages. That section, therefore, can have no application to an action of detinue, the object of which is to recover the chattel detained as well as damages for the wrongful detention. The certificate, which professed to be founded upon that statute, can have no operation. As to the rest, I concur with my Lord in thinking that this was not a case in which a certificate could have been granted under the statute of Elizabeth.

BYLES, J.-I also am of opinion that the rule should be absolute for a review of the taxation in this case. According to all the authorities, from Brooke's Abridgment, Joinder in Accion, pl. 97, down to the case of Walker v. Needham, 4 Scott N. R. 222, 1 Dowl. N. S. 220, detinue has always been considered to be an action ex *con[*428 tractû. Now, the 34th section of the Common Law Procedure Act, 1860, in addition to the use of the words "alleged wrong" in the earlier part, speaks in the latter part of "the trespass or grievance in respect of which the action was brought." It seems to me, therefore, to be clear that an action of detinue, which is not and cannot properly be called an action for the recovery of damages, does not fall within the meaning of the section. Then, as to the statute of Elizabeth,which no doubt is still in force with regard to actions on promises: see Townsend v. Syms, 2 Car. & K. 381 (E. C. L. R. vol. 61); Richards v. Bluck, 6 C. B. 443 (E. C. L. R. vol. 60), 6 D. & L. 334.(b) The oro

(a) See Clossman v. White, 7 C. B. 43 (E. C. L. R. vol. 62).

(b) In Richards v. Bluck, which was an action of covenant on a farming lease, the defendant

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