refused as to the proprietor seemed fit. The usage was as strong as it possibly could be under such circumstances. But it was asked, if the corporation of Poole had been in confederacy with the then proprietor of the island, and did not choose to sue upon this usurpation, should a poor fisherman by such means be deprived of his right? Certainly not. However, if so general a right had existed, it may be presumed any usurpation on that right would have been resisted. And why are we to presume any such confederacy between the owner of the island and the corporation of Poole? I have said, that where the words of a grant are general, they must be explained by usage. The grant of Henry the Second, conveys the island of Brownsea, and its shores; What then are its shores? what usage has pointed out. And if I find the usage such as existed here, how can I resist the evidence? It is urged, that this is only a grant of wreck, but wreck must rest on the soil, usage must determine what has been deemed soil, and vessels of burthen could at no time float over the mud in question. The lakes which have been mentioned, were only such small inlets as every where intersect the shore. The grants of Charles the Second confirm this usage, inasmuch as those grants were never acted on or acquiesced in by the owner of the island. I think, therefore, the question has been properly disposed of, and that a new trial cannot be granted. PARK J. If the grants in question contained any thing inconsistent with the usage established, the case might be different, but, the grant consisting of general words, we are driven to enquire what has been the usage under it. That is all one way, and it is reasonable to suppose it was the same in ancient times as at present. Nothing in the present decision will conflict with that of Vooght v. Winch, which only decided that, in a public naviga 1821. CHAD V. TILSED. ble 1821. CHAD บ. TILSED. ble river, twenty years' possession of the water at a given level is not conclusive as to the right. BURROUGH J. The verdict in this case is not contrary to the legal effect of the evidence, but serves to confirm the construction put on the grants. The first contains a grant of wreck to the abbey of Cerne, throughout all their lands upon the sea, which shews they had other lands besides the main-land of Brownsea; now what could these other lands be but the land in question? As to the grants produced by the Defendant, deeds produced by a party avail him nothing, unless the possession has gone consistently with them: Here, the parties who received the first grant from Charles the Second, did nothing under it; then other adventurers came forward, who also failed to make any attempt conformable to their grant. For what reason did both these parties, who thought it beneficial to take the grant, abstain from acting under it, but because they found a person in possession under a former grant? Then, the assertions of right on the part of the Plaintiff are strong beyond all measure; and though the erection of the bank forty years ago would not of itself confer a title, yet, from such erection unopposed and the subsequent uniform usage, prior usage to the same effect may be presumed, which, coupled with the general terms of the grant, establish the Plaintiff's claim beyond dispute. RICHARDSON J. The evidence of assertion of right on the part of the Plaintiff and those under whom he claims is indeed abundantly strong; however, I should agree that the legal effect of this evidence would not invest him with a title, and that the whole might amount to nothing more than usurpation, if it were quite clear that, prior to the construction of the embankment forty years ago, the public had any right over the locus in quo. But But in this case as in every other, modern usage of forty years' duration is evidence not only for that period, but evidence from which it may be presumed, that the same course was pursued in earlier times, if nothing is shewn to the contrary. Here there was evidence that the usage had been the same almost time out of mind; that the land in question was littus maris, not indeed so dry as terra firma, but still shore of the sea, and not covered at low water, with the exception of a small lake or inlet the place, therefore, falls within the description of land, about which there can be no doubt as to the law, that an individual may claim a right in it, either by grant or by usage independently of grant. Most of the evidences, which Hale (a) enumerates as denoting such a right exist here "constant and usual fetching gravel and sea-weed and sea-sand, between the high water and low water mark, and licensing others so to do; inclosing and imbanking against the sea, and enjoyment of what is so inned; enjoyment of wrecks happening upon the sand." The grants of Charles the Second call the spot in question ooze land, and, therefore, are evidence to shew that, even in those days, the place was considered as between high and low water mark; and, as nothing was done under them, they rather make against the Defendant than for him, as it should thereby seem that, when the grantees came to act under their grant, they found an obstacle in an earlier and better title. (a) De Jure Maris, pars 1. c. 6. p. 27. 1821. CHAD V. TILSED. 1821. Feb. 6. By charterparty between Defendant, owner of a Defendant CHARLES CHRISTIE, GEORGE ALEXANDER WYlie, and WILLIAM ATKINSON, Assignees of the Estate and Effects of GEORGE LAING, a Bankrupt, v. LEWIS LEWIS. ASSUMPSIT for money had and received by the Defendant for the use of George Laing, before he became a bankrupt, and also for money had and reship, and G. L. ceived by the Defendant, to the use of the Plaintiffs as granted and to assignees of the estate and effects of the said George freight let, and Laing, after his bankruptcy. The declaration contained the other usual money counts, with an account stated. The Defendant pleaded the general issue. At the trial of the cause before Gibbs C. J. (London Sittings after Trinity term 1817,) a verdict was found for the Plain G. L. took and to freight hired the ship for the voyage. Defendant covenanted that the master should receive on board at London, goods to be sent alongside by G. L., and deliver them from alongside at Newfoundland, according to bills of lading, there receive, and deliver at Demerara other goods, in like manner; and there, in like manner, receive other goods, and deliver them in the London docks, according to bills of lading; and that the ship's boats should assist in loading and unloading, so as the exclusive duties and operations of the ship should not be thereby impeded. In consideration whereof G. L. covenanted to send and take from alongside goods, and to pay for the freight and hire of the ship for the voyage 26col., with primage, &c., one quarter part thereof on delivery of goods at Newfoundland, by good bills at 60 days' sight on London, and the remainder by good bills at two months' date from the day of the ship's report inwards at the port of London. The voyage was performed, and goods of third persons brought from Demerara under bills of lading, deliverable to the consignees on payment of certain specified freights therein mentioned, which freights the Defendant received, no bill for the three quarters freight per charter-party having been given or tendered to him, and a bill for one quarter given at Newfoundland having been dishonoured: Held, (Dallas C. J. dissentiente,) first, that, notwithstanding the words of grant, taking the whole charter-party into consideration, the possession of the ship did not pass to the freighter, but remained in the owner; and that, as the freight per charterparty was to be paid to him by good bills, prior to the delivery of the homeward cargo, he had a lien thereon for such freight secondly, that he had a right to receive the freight per bills of lading from the consignees, and had a like lien on such freight when so received. tiffs, with 19817. 16s. 9d. damages, subject to a refer ence as to the amount, and to the opinion of the Court upon a case which was, in substance, as follows: The Defendant on the 2nd February 1815, and from thence continually until the 1st April 1816, was sole owner of the ship Ann belonging to the port of London. On the 2nd February 1815, the Defendant as such owner, and George Laing the bankrupt, entered into a charter-party, under seal, by which the Defendant for himself, his heirs, executors, and administrators, granted and to freight let, and George Laing for himself, his executors, administrators and assigns, hired and to freight took the ship Ann, for the voyage, upon the terms and conditions, and for the considerations following: Imprimis, the Defendant covenanted, that the vessel being tight, staunch, and substantial, well manned, tackled, apparelled, and furnished as is usual for vessels in the merchants' service, and for the voyage thereinafter mentioned, the master William Wilson, or some other proper person, should receive and properly stow on board the said vessel, all such lawful goods, wares, and merchandises, as the said freighter or his assigns might think proper to send alongside her in the port of London, not exceeding, in the whole, what she could safely stow and carry, over and above her stores, tackle, apparel, and provisions; and, having received the same on board, and being dispatched, the master should immediately (wind and weather permitting) set sail, and proceed in and with the vessel from the port of London, and proceed to Portsmouth, there to join and sail with the first convoy appointed for Newfoundland, and, being arrived at St. John's in Nerofoundland, should make a right and true delivery of the cargo from alongside, to the agents or assigns of the said freighter, according to the bills of lading signed in London; such cargo being discharged, and the vessel ren 1821. CHRISTIE บ. LEWIS. |