shore between high and low-water mark?] No doubt they might. [JERVIS, C. J.-Where there is a fact disputed, the usual course is to direct the applicant to declare in prohibition. I see nothing, however, in the affidavits here to show that the locus in quo is not a "public place" within the act.]

*753] *Atkinson, Serjt., in support of his rule. The locus in quo, if a "public place" at all, is not of the kind meant by the act of parliament. The provisions as to paving, watching, lighting, and watering, for instance, are not applicable to that portion of the sea shore which is covered by the flow of the tide. [MAULE, J.-Suppose a portion of it were enclosed and had streets formed upon it, it would then become within the act?] No doubt, it would. [JERVIS, C. J.-Do you contend that a place cannot be a "public place," that is not paved or watered?] No. The proper definition of a public place probably would be, a place where the public have a right to go. [JERVIS, C. J.-A "public place" within the act, seems to be a place where the public in fact go, where the protection provided by the act is required for the convenience of the public.] The affidavits, even if that were the meaning, do not show that the South Sands is, in fact, a public place; only that several public streets terminate or abut thereon. [JERVIS, C. J.It is sworn on the one side, and not denied on the other, that the South Sands between high and low-water mark are within the township of Scarborough. The act speaks of "public places:" and certainly public convenience requires us rather to lean in favour of holding it to be within the jurisdiction of the commissioners.] But, it must not only be a "public place," but one "made or built," or "laid out and made,”—of a particular kind. [JERVIS, C. J.-The statute, I think, could not intend that a place should not be a "public place" unless artificially constructed. MAULE, J.-Suppose the sands existed in their original state in the possession of a private individual, might they not be said to be made a "public place" by being dedicated to the public?] The word "made,” construed by the maxim, "Noscitur a sociis," will not bear that construction. Again, it appears that the sands in question are the property of the lord of the manor, whose rights are expressly saved by the *754] 91st *section of the act. [MAULE, J.-It seems that the commissioners have actually taken possession of the sands, by laying pipes therein are we upon such a motion as this to disturb that possession?] It may be that the pipes were laid down with the consent of the lord. In Loveridge v. Hodgson, 2 B. & Ad. 602 (E. C. L. R. vol. 22),—a case not unlike this,-it was held, that the 57 G. 3, c. xxix., did not give the commissioners authority to take under their jurisdiction, or to make a rate for lighting and watching, the foot-paths on the side of the turnpikeroads within the jurisdiction of the act. [MAULE, J.-It is somewhat remarkable that the act makes no mention of the sands. CRESSWELL,

J.-The 18th section (a) tends to show that "place" was not meant to be confined to places having houses on either side.] The case of Blundell v. Catterall shows that the circumstance of the public in point of fact resorting to the sands does not make it a "public place" within the meaning of the act. Lastly, the learned Serjeant prayed to be allowed to declare in prohibition, to try the fact of the locus in quo being a public place.

*JERVIS, C. J.-I think, upon the materials which are before [*755 us, we are bound to discharge this rule. There is no affidavit that the place where Birch committed the alleged obstruction, was not in fact a public place. Birch's affidavit only states, that the South Sands were part of the manor of Scarborough, and were not "a street, lane, alley, or public place or public passage in the township of Scarborough, within the meaning of the act of parliament, and was not, as he was advised and believed, within the jurisdiction of the said commissioners." On the other hand, it is sworn that the commissioners have always exercised control over it, and assumed it to be within their jurisdiction; and their whole conduct with respect to it shows that they were acting under the bonâ fide belief that it was within their jurisdiction. To say the least, it is matter of very considerable doubt upon the construction of the act of parliament, whether they have jurisdiction or not. Now, a prohibition is not a matter of absolute right: the party asking for it is bound to make out a clear case. If he can show that the commissioners have acted beyond their jurisdiction, the applicant has his remedy by action. Not being satisfied that he is entitled to have this rule made absolute, we can only discharge it.

MAULE, J.—I also think this rule should be discharged. The case is by no means free from difficulty upon the construction of the act. The commissioners, however, have, it seems, acted upon the assumption that they had jurisdiction over the South Sands as over any other street or public passage or place within the township; and nobody suggests that what they have done has ever been the subject of complaint. They have expended a large sum of money in the exercise of the powers of draining given to them by the act, in carrying tubes for that purpose under and through the sands in question, and which sum has been raised

(1) Which enacts, "that, when any new street shall be laid out and made in the said township of Scarborough (such streets being thoroughfares), and shall be well and sufficiently flagged and paved with good and substantial sea cobbles, and put in good order and repair, to the satisfact.on of the said commissioners, then, on application of the owner or owners of the soil, or of the owner or owners of the adjoining houses of such streets, or a majority of them, it shall be lawful for the said commissioners, and they are empowered, from time to time, by writing under their hands, to declare the same to be public highways; and, from and after such declaration made, such new streets and ways as aforesaid, and every of them, shall be deemed and taken to be public highways to all intents and purposes, and be repaired and kept in repair by the said commissioners as the other parts of the streets, lanes, alleys, and public passages, except as herei before excepted, within the said township, are by this act directed to be managed and govemed."

by means of *rates which nobody seems to have objected to. *756] Under these circumstances, I do not think we are properly called upon to stop these proceedings by issuing a prohibition. The applicant may try the question of jurisdiction more rapidly, and probably more cheaply, by an action. For these reasons, I concur with my Lord in thinking that this rule should be discharged.

CRESSWELL, J.-I am of the same opinion. We are not bound to grant a prohibition ex debito justitiæ, nor unless we are clearly satisfied that the inferior jurisdiction is about to exceed its powers. I admit that the construction of this act is by no means free from doubt. My Brother Atkinson says, amongst other things, that, though the public used the sands, they did not use them of right, and therefore they are not a "public place" within the meaning of the act of parliament. I think his construction on this point is not correct. The metropolitan police-act, 3 & 4 Vict. c. 84, authorizes a police-constable to take into custody persons furiously riding or driving in any highway or public thoroughfare or place. Suppose the offence to be committed in Hyde Park, could it be said not to have been committed in a public place, because Hyde Park is not for all purposes a public place? The affidavit upon which this motion was founded, does not state that the place in question was not in fact a public place, but that it was not "a street, lane, alley, or public place, or public passage in the township of Scarborough, within the meaning of the said act," and was not, as the depɔnent was informed and believed, within the jurisdiction of the commissioners. And then it goes on to state something which is inconsistent with that, viz., that the deponent had, in common with many other inhabitants of Scarborough, always pursued his calling of a dealer in shells and pebbles on the said part of the said sands, until October in last year, without complaint or *molestation, and had always done *757] so openly and without leave of any one, and as of right, as he believed. If they were there as of right, the applicant cannot consistently contend that it is not a public place. For these and the reasons given by my Lord and my Brother Maule, I concur with them in thinking that the remedy by action is the better course.

Rule discharged.

SIMPSON v. SADD. Jan. 31.

Practice as to allowing affidavits to be filed in answer to "new matter," under the 45th section of the Common Law Procedure Act, 1854, 17 & 18 Vict., c. 125.

THE writ of summons in this action was issued on the 6th of April, 1854. The declaration was delivered on the 8th of April, the plaintiff thereby seeking to recover 1607. 118., the price of certain fixtures sold and delivered by him to the defendant, and 54l. 198. 11d. for the use

and occupation of certain premises of the plaintiff. On the 19th of the same month, the defendant pleaded never indebted, and issue was joined on the 25th, and notice of trial given for the first sitting for London in Trinity Term last.

On the same 25th of April, the plaintiff filed a special claim in Chancery, praying a specific performance of an agreement whereby the defendant had agreed to take from the plaintiff a lease or leases of the messuages mentioned in the declaration in this action.

On the 22d of May, the defendant obtained an order to add a plea of fraud.

On the 26th, the defendant, upon an ex parte application, obtained from Vice-Chancellor Stuart an order that the plaintiff should within eight days elect to proceed at law or in equity; whereupon the plaintiff, by the advice of counsel, elected to proceed in equity, and the record in the action at law was withdrawn by consent.

*On the 27th of June, an order was made by Vice-Chancellor Stuart in the suit in favour of the plaintiff, and it was thereby, [*758 amongst other things, ordered that the defendant should pay to the plaintiff the costs of the action. The defendant appealed against this order, and, on the hearing of the appeal, the Lord Chancellor varied the order, by, amongst other things, directing that such part thereof as ordered the defendant to pay the plaintiff the costs of the action, should be omitted.

On the 2d of January, 1855, the defendant applied to Maule, J., for an order to the master to tax his costs of the action, but failed to obtain it.

On the 19th of January, the defendant applied to the Lord Chancellor to vary the order so made by him on appeal, and by the order as finally settled it was ordered that the defendant had waived his right to require the plaintiff's title to the said messuages; and it was ordered that the defendant should within three weeks pay into the Court of Chancery, amongst other sums of money, the sum of 271. 08. 6d., the amount of the plaintiff's taxed costs of the said cause; and it was also ordered that the defendant be at liberty to proceed at law, notwithstanding that order and the order of the 26th of May, 1854. The total amount of the sums ordered to be paid into the Court of Chancery under the order of the 19th of January, was, 3477. 12s. 5d.

On the 23d of January, 1855, the defendant obtained from Crowder, J., an order "that the costs incurred by the defendant herein be referred to the master for taxation, and the amount found to be due be paid by the plaintiff to the defendant or his attorney, he the plaintiff having elected to proceed in equity for the same cause of action."

John Gray, on a former day in this term, obtained a rule calling upon the defendant to show cause why the *order made by Crowder, J., should not be set aside, or that the costs taxed thereunVOL. XV.-64 2 U

[*759

der should be set off against the plaintiff's costs of the Chancery suit. He submitted, that, although the plaintiff might properly be put to his election whether he would proceed at law or in equity, the learned judge had no authority to order the plaintiff to pay the costs.

Petersdorff being now prepared to show cause,

Gray,―upon a suggestion that the affidavit about to be used in opposition to his rule contained "new matter,"-moved, under the 45th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, (a) for leave to file affidavits in answer to such new matter. [CRESSWELL, J.-What is the new matter?] The affidavit proposed to be used on showing cause, in the statement of what took place on the hearing before the Lord Chancellor, alleges that the defendant's counsel stated to the Lord Chancellor, that, unless the plaintiff was also restrained by his order from proceeding with his action, the moment the defendant attempted to recover his costs, he would meet with opposition from the plaintiff which would perhaps be the means of preventing the defendant from recovering his costs in this action, which the Lord Chancellor was clearly of opinion he the defendant was entitled to recover; and that, upon the defendant's counsel making such last-mentioned statement to the Lord Chancellor, Mr. Malins, who appeared as counsel on behalf of the defendant, at *once assured *760] his Lordship that there would be no occasion for his client being restrained, as he, the plaintiff, would not attempt in any way to prevent the defendant from obtaining his costs of the action at law; whereupon the Lord Chancellor stated to the defendant's counsel, that, if, on proceeding to recover his costs, the defendant met with any opposition from the plaintiff or his solicitor, he was forthwith to make a further application to him, and he intimated that he would see that their opposition was stopped."

Petersdorff stating that he intended to rely upon that part of his affidavit,

JERVIS, C. J., said, that, as it was clearly new matter, the plaintiff must have an opportunity of answering it,(6) and the rule was accordingly Enlarged. (c)

(a) Which enacts, that, "upon motions founded upon affidavits, it shall be lawful for either party, with leave of the court or a judge, to make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits."

(b) In a subsequent case of Wood v. Cox, in Trinity Term, 1855, a discussion took place as to the proper mode of carrying into effect the 45th section, and the court intimated an opinion that it must be by an exercise of their discretion upon the rule coming on for argument, and not (as was stated to be the practice adopted in the Queen's Bench) by a substantive motion. (c) Cause was shown in Easter Term, and the rule discharged. Vide 16 C. B.