amongst others. In an action on the case for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way; and, indeed, under these rules, all matters in confession and avoidance shall be pleaded specially, as in actions of assumpsit. Therefore, if there be a claim of damages for consequential injuries, there must be a special plea.(1)

[*402]

By another rule, in any case in which a defendant shall plead *the general issue, intending to give the special matter in evidence by virtue of any act of Parliament, he must insert in the margin of the plea the words "by statute;" otherwise such plea will be taken not to have been pleaded by virtue of any act of Parliament; and such memcrandum must be inserted in the margin of the issue and of the nisi prius record.(m)

Where the action was brought for erecting a cesspool and contaminating a well thereby, it was held, that "not guilty" would put in issue both these subjects of complaint.(n)

Within the new rules, again, it is not competent to plead a custom for owners to make trenches in lands for conveying water for the better work of a stannary, and another plea alleging the custom to be so to do upon making compensation for any injury done.(0)

The Court will not allow a special plea and not guilty by statute, although the plea raise a defence independent of the statute. It would be inconsistent with 4 Ann. c. 16, s. 4, to do so.(p)

The plea of not guilty merely puts in issue the fact of the diversion of the watercourse, but not the tortious character of the act; therefore, where, under such circumstances, the plaintiff merely proved that he had erected a grist mill upon the stream within twenty years, and so failed to shew his title to the water, the Court directed a verdict to be entered for him without damages. In this case also it is observable that the plaintiff in his declaration claimed the water as being owner of a mill, whereas, had he claimed as owner of the land, the evidence might have shewn a user of above twenty years, and although the learned Judge refused to nonsuit upon this, he would not permit an amendment so as to adapt the pleading to the proof. But Patteson, J., afterwards said, when the case came before the Court, that he should not have received evidence to shew that there was no mill, inasmuch as the plea admitted the existence of a mill. The learned Judge at the trial indorsed the facts

(7) 17 L. J., Q. B. 233, Clegg v. Dearden. S. C. 12 Q. B. 576.

(m) Reg. Gen. Q. B. C. P. and Exch. T. T. 1 Vict. 4 Bing. N. C. 816. 3 Nev. & P. 381. 4 Mees. & W. 3. 6 D. P. C. 649.

(n) 9 Mees. & W. 665, Norton v. Scolefield. S. C. 1 Dowl. N. S. 638.

(o) 5 Ad. & El. 827. 1 Nev. & P. 242. 2 Moo. & R. 129, Bastard v. Smith. The defendant begins here, although the plaintiff avers his intention to recover real damages. 2 Moo. & R. 129.

(p) 11 Ad. & El. 631. 1 Gale & D. 72. 9 D. P. C. 1033, Ross v. Clifton. JUNE, 1853.-24

upon the postea under 3 & 4 Wm. 4, c. 42, s. 24, in order that the *Court might give such a judgment as they should see fit.(g) [*403] The defendant, within twenty years after a company had possessed

themselves of a right to take water under an act of Parliament, sank a well and used the water in a manner which the act did not prohibit. On the contrary, the act had reserved to the inhabitants, occupiers, the right to water for necessary uses, and for their cattle. The Court held this defence available under not guilty and a plea denying the plaintiff's right.(r)

But, secondly, we proceed to the pleadings in those cases where the improper uses of the watercourse itself has occasioned the damage, as by diverting it to the injury of another person's property, in which case the aggrieved party has a full title to damages. And here we must refer back to those decisions which have been cited in a previous page, for the purpose of shewing the particular injury complained of, it being necessary to adopt great strictness in describing the wrong, whatever it may be, for which the action is brought. With respect to the continuando, it is customary to allege it in actions on the case; but as trespass is one entire act, it seems better to abstain from it in declarations of that sort. And there is a case to justify this position. For upon executing a writ of inquiry of damages in trespass for digging a hole in the plaintiff's soil, whereby his land was overflown, continuing the trespass for nine months, it was insisted that evidence might be given of a consequential damage after the nine months, as well as in the case of a nuisance which continues for nine months, where, the cause being removed, the effect nevertheless continues. But Holt, C. J., would not agree to this, observing, that in the case of a nuisance, the damage was the gist of the action; but that in trespass the tort was the material point, and he doubted whether an action would lie for the continuance of a trespass as of a nuisance.(s)

The same rules relating to declaring upon the possession, apply upon these occasions, and upon the same principle, namely, that the defendant is a wrong doer.(t)

In this last case, the plaintiff had brought an action on the case, against the defendant, for causing water to flow through the pipes near the foundation of the plaintiff's house, and for neglecting to repair them, by means of which the water flowed through, and sapped the [*404] foundation of the house. After a verdict for the plaintiff, it was objected that there was no allegation that the pipes in question were the defendants, or that he laid them on the place where the injury occurred, and that, therefore, it could not appear that he was either bound to repair

2 Ad. & El. 452, Frankum v. Earl of Falmouth. S. C. 4 Nev. & M. 330.

15 Law J., N. S. 315, South Shields Waterworks Company v. Cookson.
12 Mod. 519, The case of the Farmers of Hampstead Water.

(t) 2 Lord Raym. 1568, Hoare v. Dickinson.

them, or responsible for any consequences. the objections, and affirmed the judgment.(u)

But the Court disallowed

The defendant

The plaintiff declared in case for an obstruction. pleaded that the plaintiff's tenant ought to have repaired a wall, and that owing to the neglect of the tenant the wall fell into the watercourse, and that the defendant, within a reasonable time after notice, removed the obstruction. This plea was held bad for want of shewing an obligation upon the tenant to repair merely as terre-tenant. (v) And the defendant could not excuse himself by averring that he repaired as soon as he had notice of the injury, because he became liable at the time when the injury occurred. So if he had alleged that he repaired as soon as possible after the injury.(w)

It is a bad plea to allege that the plaintiff himself had abated the nuisance complained of, because damages may be recovered in respect of the past injury.(x)

The plaintiff sued certain commissioners of sewers for obstructing a watercourse where the plaintiff claimed a right of navigation. The defendant denied the right and the obstruction. Some attempts having in vain been made to refer the matter, which lasted four years, the commissioners desired to plead a third plea, which would go to defeat the action. But the Court refused this, unless the commissioners would renew their prior offer of compensation, and unless the plaintiff should refuse the compensation when tendered. (y)

Unity of possession need not be specially replied.(yy)

A replication to a plea, which stated a right to a certain watercourse, and a practice for twenty years to scour and widen a channel for the purpose of enjoying the said watercourse, traversing the right [*405] to the water as well as the right to scour *and widen, was held good upon special demurrer, and not bad for duplicity, because the quasi prescription in the plea was not severable.(z)

A replication to a plea alleging a general right to take sea-weed, that every subject had not, nor had the defendant that right, was held bad, because it traversed matter of law, or was argumentative and double, as tendering two issues of fact.(zz)

(u) 2 Lord Raym. 1568, Hoare v. Dickinson.

(v) If it had, whether the plea would have been good. Quære?

(w) 1 Q. B. Rep. 766, Bell v. Twentyman. S. C. 1 Gale & D. 223.

(x) 2 Mod. 253, Kendrick v. Bartland. S. C. 1 Freem. 230.

(y) 6 Bing. N. C. 442, Mealey v. Pritchard. S. C. 8 Sc. 684.

(yy) 2 Moo. & R. 244, Clay v. Tharah. S. C. 9 C. & P. 47. S. P. 4 M. & Wels. 496, Only v. Gardiner.

(z) 5 Č. B. 568. 5 Dowl. & L. 501. 17 Law J., C. P. 177, Peter v. Daniel, ante,

p. 401.

(zz) 1 Alc. & N. 348, Howe v. Stowell. But the plea was likewise held bad.

[*406]

*CHAPTER XIII.

OF EVIDENCE.

It is not necessary to say more, by way of preface to this Chapter, than that we propose to follow the same course of inquiry as in the last; that is to say, to detail the evidence necessary upon the trial of indictments, and then to mention those proofs which declarations and pleadings require, so far as they are connected with the subjects of this Treatise.

With respect to witnesses, however, the stat. 3 & 4 Wm. 4, c. 42, s. 26, ordained, that witnesses interested solely on account of the verdict should be admissible, provided, by sect. 27, that the name of the witness be indorsed on the back of the record. This statute was considered not to help a person called on the part of the plaintiff, who admitted on the voir dire, that she had been a joint owner in fee with the plaintiff of a house in respect of which a certain right to water was claimed. The indorsement of her name on the record would make no difference. (a)

So before the stat. 6 & 7 Vict. c. 85, certain borough freeholders, who claimed common of fishery, had agreed mutually to support each other in bearing the expenses of defending any prosecution against them for fishing in their common of fishery. It was held, that a commoner subscribing the agreement was a competent witness, the word "prosecution" meaning criminal proceedings only.(6)

But now by 6 & 7 Vict. c. 85, no witness is to be excluded from giving evidence on account of any incapacity either from crime or in

terest.

Wreck was claimed by grant and prescription. The answer of certain tenants of a manor, stating that the lord was entitled *to wreck, [*407] was held inadmissible as evidence, for although they might have been called jurors, they had no particular means of knowledge, and their declarations could, therefore, have no more weight than those of other persons. (c)

The jury cannot infer custom and prescription from the same evidence.(d) Enjoyment of a profit à prendre by the owners and occupiers

(a) 8 C. & P. 570, Steers v. Carwardine.

(b) 4 Q. B. 419, Rawlins v. Jenkins. S. C. Dav. & M. 219.

(c) 1 Cr., M. & R. 495, Talbot v. Lewis.

(d) Ad. & El. 5 Nev. & M. 308, Blewett v. Tregoning. Whether a customary and prescriptive right may exist in respect of the same land, if each be proved by proper evidence. Quære?

of a particular estate during living memory, without any evidence of user or non-user at any antecedent period, is evidence of a prescription, but will not support the plea of a lost grant. To support such a plea, some evidence must be given tending to refer the commencement of the user to the period of the supposed grant.(e)

In indictments for obstructions of navigable rivers, the particular nuisance is set out; and issue being commonly joined upon not guilty, it becomes the duty of the prosecutor to prove the allegations which he has made. Upon proof that the mischief has been done upon a navigable river, and of the nuisance complained of, the defendant must give some reason for his acts; as, that he was employed in repairing the banks of the river, or cleansing the stream, &c. In default of any evidence to counteract the prosecutor's proof, the defendant will, of course, be convicted.

Very slight testimony will suffice to shew the general user of the great rivers; and with respect to the Thames, Mr. Justice Chapple observed, upon one occasion, that the Court would take notice of that river.(f) More particular evidence certainly becomes necessary when the user has been less frequent; but as the public right in rivers will be further considered when we come to speak of the proof necessary to establish pleas of that nature, and as the testimony is the same upon both occasions, the consideration of it shall be postponed a little, for the sake of brevity.

It was said in one case, by Holt, C. J., that any thing which aggravated the fact of the obstruction might be given in evidence, although not directly to the issue, as, the taking of money to let people pass, which was the complaint then before him. It had been excepted to a witness in the same case, that he had contributed to carry on the suit, and that the public nuisance affected him also as a private nuisance; but the Chief *Justice said, that these objections could not prevail against his competency.(g)

[*408]

Trespass was brought for an interference with the sea beach. The 1. i. q. was described as part of the beach lying between high and low water mark. The abuttals were set out as being landwards towards the north, or by sides particularly mentioned. But it appeared that these abuttals were not immediately contiguous to the 7. i. q. There intervened a waste strip of shingle, no part of the sea beach. It was held, that the abuttals were not proved.(h)

The observations which we have made respecting obstructions to navigation, apply in a great measure to the subject of evidence upon indictments for disturbing public fisheries.

(e) Id. Ibid.

(g) 12 Mod. 615, Rex v. Clark.
(h) 1 Q. B. 439, Webber v. Richards.

(ƒ) Andr. 150.

S. C. 1 Gale & D. 114.