1838.

HALL

v.

SWIFT.

itself. It is further objected that the right claim has been lost by desuetude, the water having many years since discontinued to flow in its accustomed channel, and having only recommenced flowing nineteen years ago. That interruption, however, may have been occasioned by the excessive dryness of seasons or from some other cause over which the plaintiff had no control. But it would be too much to hold that his right is therefore gone; otherwise, I am at a loss to see why the intervention of a single dry season might not deprive a party of a right of this description, however long the course of enjoyment might be. With regard to the last objection, that the verdict was not warranted by the evidence, we will consult the learned judge who presided at the trial before we determine whether or not a rule shall be granted.

TINDAL, C. J., on this day said that one of the learned judges had communicated with Mr. Justice Alderson, who stated that the facts were fully and fairly left to the jury, and that he was not dissatisfied with the verdict; and therefore that the court declined to grant a rule.

Rule refused.

Tuesday, April 24th. A judge at Chambers having made an

order requiring

an attorney to

deliver up to the

husband (who had paid for it)

the draft of a marriage settlement under which he (the attorney) was a trustee-The court refused to set aside the order.

BY

Ex parte HOLDsworth.

a judge's order, Mr. Callow, an attorney of this court, was directed to deliver up to Mr. Holdsworth the draft of that gentleman's marriage settlement, which had been prepared by Mr. Callow, and the charges for which had been paid to him by Mr. Holdsworth. Mr. Callow was one of the trustees, and as such claimed a right to retain the draft.

Bompas, Serjeant, moved to set aside this order.-He submitted, that, inasmuch as Mr. Callow held the draft in

1838.

Ex parte

question, not as the attorney of Mr. Holdsworth, but as trustee (o), he could not be called upon to deliver it up; the trustees being the legal owners of the property, and HOLDSWORTH. consequently of the deeds and drafts relating thereto. He cited Harrington v. Price, 3 B. & Ad. 170, Lightfoot v. Keane, 1 M. & Welsby, 745, and Lord v. Wardle, 3 New Cases, 680, 4 Scott, 402; and attempted to distinguish the present case from In re Horsfall, 1 M. & R. 306, 7 B. & C. 528, where it was held that an attorney, when ordered to deliver up papers of his client, must deliver up the drafts of deeds, for which he has charged and been paid, as well as the deeds themselves, because there the applicant was the owner of the deeds.

TINDAL, C. J.-Had the object of the application to my Brother Vaughan been to compel Mr. Callow to deliver up the deed, its result is obvious enough. But the question is whether the cestui que trust is not entitled to be acquainted with the contents of the deed. It seems strange to say that a party liable to the performance of covenants shall not have the means of knowing what those covenants require of him. Instead of asking for a copy of the settlement, the party demands that the draft, which he has paid for, may be handed over to him. I think he has a right to it. If the draft contained anything that it would under given circumstances be improper that Mr. Holdsworth should be informed of, the case might be different. But then that should be made to appear by affidavit. There is, however, neither affidavit nor suggestion of that sort: the simple question presented to us is, whether Mr. Callow, by reason of his character of trustee, has a right to withhold this draft. I think there is no ground for setting aside the order of the learned judge.

(a) See Pearson v. Sutton, 5 Taunt. 364; Ex parte Moxon, 1 Dowl. 7.

1838.

Ex parte HOLDSWORTH.

PARK, J.-The applicant has an unquestionable right to the draft for which he has paid. " zdol mid

Thursday, April 26th.

was the sole oc

The defendant REPLEVIN for taking the plaintiff's sheep, on the 15th cupier of certain October, 1836, in the parish of Houghton, in the county open and unin- of Sussex, in a certain open common or down there, called , **!** od and unr* 9'uro 19791q

closed downs in

the county of

Surrey; the

defendant had a

upon the adjoining downs; the

boundaries of the respective downs being ascertained only by posts placed

at short distances in the ground:-Held, that, under the circumstances, common pur cause de vicinage could not

be set up as an excuse for the

Houghton Down.

The defendant in his avowry stated, that, at the time right of common of making the demise thereinafter mentioned, Bernard Edward, Duke of Norfolk, was seised of and in the place in which &c., with the appurtenances," in Kis' demesne as of fee, and, being so seised, the said Duke, before the said time when &c., to wit, on &c., demised the said place in which &c., with the appurtenances (among other things), to the defendant, to have and to hold the same to the said defendant as tenant for one whole year, and so from year to year so long as the defendant and the said Duke should respectively please: by virtue of which said demise the defendant afterwards, and before the said time when &c., to wit &c., entered into the said place in which &c., willi downs so occu- the appurtenances, and became, and until and at the said time when &c. was lawfully possessed thereof; and because the said cattle in the declaration mentioned, at the said time when &c., were wrongfully and injuriously in the said place in which &c., treading down and depasturing the grass and herbage there then growing, and doing damage there to the defendant, the defendant avowed &c., as and for and in the name of a distress for the said damage so there done and doing as aforesaid.

trespassing of the plaintiff's cattle upon the

pied by the

defendant.

Plea.

יד

The plaintiff pleaded, that the said place in the decla ration' mentioned, in the parish of Houghton aforesaid,

་་།

that is to say the said common or down called Houghton Down, in which &c., at the said time when &c., lay, and, from time immemorial had lain and still did lie contiguous and next adjoining to a certain other common or down in the parish of Bary, in the county of Sussex, that is to say, a certain common or down called Bury Hill Down, containing divers, to wit, five hundred acres of land, and had never been separated or divided from the last-mentioned common or down in the parish of Bury, that is to say, from the said common or down called Bury Hill Down, by any inclosure, hedge, or fence whatsoever sufficient to prevent cattle from time to time feeding and depasturing on the said common or, down in the said parish of Bury, that is to say, the common or down called Bury Hill Down, from erring and escaping therefrom into the said common or down in the said parish of Houghton, that is to say, the common or down called Houghton Down, in which &c.; and that the said cattle from time to time. during all that time duly put on the said common or down in the said parish of Bury, that is to say, the said common or down called Bury Hill Down, to feed on the grass there then growing, and to use the said common of pasture in upon, and throughout the said last-mentioned common, or down, from time immemorial had gone, escaped, and rambled, and had been used and accustomed to go, escape, and ramble therefrom into the said common or down in the said parish of Houghton, to wit, the said common or down called Houghton Down, in which &c., and to intermix there and feed with cattle from time to time feeding on the grass growing on the said last-mentioned common or down; and in like manner, the cattle from time to time, during all that time duly put into the said common or down in the said parish of Houghton, to wit, the common or down called Houghton Down, in which &c., to feed on the grass there then growing, and to use the said common of pasture in, upon, and throughout the

+

1838.

HEATH

v.

ELLIOTT.

said common or down in the said parish of Houghton, to wit, the common or down called Houghton Down, from time immemorial had gone, escaped, and rambled, and had been used and accustomed to go, escape, and ramble therefrom into the said common or down in the said parish of Bury, to wit, the common or down called Bury Hill Down, and to intermix there and feed with cattle from time to time feeding on the grass growing on the said last-mentioned common or down: that the plaintiff, before and at the said time when &c., was and still is the occupier of a certain messuage, and of divers, to wit, fifty acres of land, with the appurtenances, situate and being in the parish of Bury aforesaid; and that the plaintiff and all others the occupiers for the time being of the said messuage and land now of the plaintiff, with the appurtenances, for the full period of thirty years next before the commencement of the suit and the said time when &c., without interruption, and of right, had had and been used and accustomed to have, and the plaintiff still without interruption and of right ought to have, for himself and themselves, his and their tenants and farmers, occupiers of the said messuage and land, with the appurtenances, common of pasture in, upon, and throughout the said common or down in the said parish of Bury, to wit, the said common or down called Bury Hill Down, for all his sheep levant and couchant in and upon the said land of the plaintiff, with the appurtenances, every year and at all times of the year, as to the said messuage and land with the appurtenances belonging and appertaining: that, the plaintiff being such occupier as aforesaid, just before the said time when &c. in the declaration mentioned, to wit, on the 15th of October, 1836, did put and cause to be put the said sheep in the declaration mentioned in and upon the said common or down in the parish of Bury, to wit, the said common or down called Bury Hill Down, being the plaintiff's commonable cattle