TINDAL C. J. It is unnecessary to determine many of the questions which have been argued, or to pursue closely all the decisions which have been referred to. This is an action of trover, in which I agree that the question is, whether the Plaintiff can shew the property to be in himself: as to which, in the present case, the Defendant is estopped by his own admissions; for, unless they amount to an estoppel, the word estoppel may as well be blotted out from the law. The Plaintiff is sent with an order to the Defendant's wharf; the order is received, and the Defendant says it is complied with. He afterwards tells his sawyers that the timber is not the property of Allum but of the Plaintiff; and ultimately sends the Plaintiff certain charges, saying, that those were the only charges in respect of his timber. The only question is, Whether, after this, the Defendant can set up the title of a third person, which is the less allowable, because, at the time he made the admissions, he was fully acquainted with the claim of Allum. The Plaintiff having relied on these expressions, was entitled to suppose that the Defendant kept the timber for him. It has been urged, that Hawes v. Watson and similar cases, related to a stoppage in transitu; but the principle of estoppel does not vary according to the varying rights in each individul case, and the acts and words of the Defendant here place him out of court as much as if he had made the admission in court. It is unnecessary, therefore, for us to decide in whom the property of the timber vests, although I am far from being satisfied that it is in Allum. PARK J. It is not necessary for us to decide in whom the property is vested, nor whether the Defendant is liable to an action at the suit of Allum, although it does not appear to me so clear that Allum has any claim. But I rely on the acknowledgment made three times by the 1831. GOSLING V. BIRNIE. 1831. GOSLING 2. BIRNIE. the Defendant. Upon receiving the order he says to the Plaintiff, "I will hold the timber for you," without making any mention of Allum; and it would be a gross fraud on the Plaintiff if, after that, he were held not entitled to recover. Upon another occasion he reprimands the sawyers for cutting the Plaintiff's timber; and, ultimately, when the Plaintiff enquires what the charges were in respect of the tiniber, the Defendant's answer is, "These are the only charges on your timber." This brings me to the case of Hawes v. Watson ; for the case of Barton v. Boddington has no application to the present. In Hawes v. Watson the wharfinger wrote, "Messrs. Hawes, we have this day transferred to your account, by virtue of an order from Maberly and Bell, 100 casks of tallow." Which was taken as an acknowledgment; and Lord Tenterden says, "The plaintiffs in this case paid their money upon the faith of the transfer note signed by the defendants by which they acknowledged that they held the tallow as their agents. If we were now to hold, that, notwithstanding that acknowledgment and that payment, the plaintiffs are not entitled to recover, we should enable the Defendants to cause an innocent man to lose his money. To hold that the doctrine of stoppage in transitu applied to such a case as the present, would have the effect of putting an end to a very large portion of the commerce of the city of London." Holroyd J. said, "I think that the note given by the Defendants makes an end of the present question. When that note was given, the tallow became the property of the plaintiffs, and is to be considered from that time as kept by the defendants as the agents of the plaintiffs, and the latter were to be liable from the 10th of October for all charges." And Best J. said, "I am also of opinion that the acknowledgment which has been given in evidence puts an end to all questions in this case." That is decisive as to the prin ciple. And Ogle v. Atkinson does not apply, for the decision chiefly turned on a question of stoppage in transitu. BOSANQUET J. I think the Plaintiff is entitled to recover; and if we were to hold otherwise, we should throw doubts on the principle by which a large portion of the trade of London is regulated; namely, that if a wharfinger acknowledges the title of the person for whom he holds, he cannot afterwards dispute it and it is not material whether the acknowledgment be oral or written. In questions between vendor and vender, the bill of lading, the symbol of property, may be material, but as against a wharfinger it is immaterial whether the admission of title be written. The principle is clearly laid down in Stonard v. Dunkin (a), where Lord Ellenborough says, "Whatever the rule may be between the buyer and seller, it is clear the defendants cannot say to the Plaintiff, the malt is not yours,' after acknowledging to hold it on his account. By so doing, they attorned to him." And Hawes v. Watson is decisive of this question. There the Chief Justice said, that the acknowledgment was conclusive evidence against the wharfinger. And Holroyd J. concurred with him. The title set up in Hawes v. Watson was that of Raikes. And the London Dock Company in a subsequent case were in the same situation as Watson. They delivered the goods, and Raikes sued them because the goods had been delivered before they were weighed, Raikes claiming a right to stop in transitu till they had been weighed. The Court held he had no such right; but that decision was independent of the principle established by that case and Stodart v. Dunkin, that whatever may be the claim of a third person, the Defendant, (a) 2 Campb. 344. 1831. GOSLING บ. BIRNIE. as 1831. GOSLING V. BIRNIE. as a wharfinger, cannot set it up after having admitted the Plaintiff's title. ALDERSON J. I concur with the rest of the Court in the opinion they have given. In this case Defendant has repeatedly acknowledged the title of the Plaintiff to the timber, with a full knowledge of the transaction as to the contract made with Allum. Under those circumstances he cannot afterwards be allowed to dispute that title on grounds with which he was fully acquainted when he made the admissions. Rule discharged. Jan. 29. Ejectment. proved twenty sion. The DOE dem. HARDING v. COOKE. EJECTMENT. At the trial before Vaughan B. last Devon assizes, the lessor of the Plaintiff proved that years' posses- his father had let the premises, and received the rent from 1797 to 1811, and that the lessor of the Plaintiff had received the rent from 1816 to 1819, a higher rent than had been paid to his father. It did not appear that the father had any other Defendant ten years follow ing the twenty: Held, that the Plaintiff was entitled to recover. son. The Defendant proved that he had been in possession ever since 1819. A verdict having been found for the Plaintiff, Wilde Serjt. obtained a rule nisi for a new trial, on the ground that the lessor of the Plaintiff had shewn no title as against one who had been ten years in pos session. Jones Jones Serjt. shewed cause. Twenty years' possession gives a primă facie right to bring ejectment. Stokes v. Berry (a), Stocker v. Burny (b), Denn v. Barnard. (c) If so, no counter presumption can arise from any possession of shorter duration, and the lessor of the Plaintiff must succeed, unless the Defendant shews a subsequent title by some other means. If ten years' subsequent possession were sufficient, why not five, or one, or less than one? Wilde. The lessor of the Plaintiff must recover on the strength of his own title, not on the weakness of the Defendant's. (d) Actual possession for the last ten years is a good primâ facie title as against the preceding twenty; and it is for the Plaintiff to shew why he was out of possession for the last ten. In the cases referred to, the possession of the lessor of the Plaintiff continued down to the time of the ouster. The Defendant is not called upon to disclose the particulars of his title because the lessor of the Plaintiff may formerly have held the same property. TINDAL C. J. In this case, it was proved that the elder Harding and his son held the premises for twentythree years, and during that time received and increased the rent, an unequivocal act of ownership, from which the law presumes a seisin in fee. The father died seised; and the lessor of the Plaintiff shewn to have survived him. That would be enough, even in a writ of right, to call on the tenant to establish a stronger claim. is the only son who is It is admitted on the part of the Defendant, that this would have been sufficient, if the ejectment had been (a) 2 Salk. 421. (c) Cowp. 595. brought 1831. DOE dem. บ. COOKE. |