YOUGHAL ELECTION PETITION.

description. We think the true and fair construction of the Act is, that every man who is elected to serve in Parliament for any city, borough, or county, or any place returning a member of Parliament, who shall, before, during, or after an election, be guilty of giving or providing entertainment corruptly for the purpose of being elected, commits an offence within the meaning of the Corrupt Practices Prevention Act. We must certify that to the learned judge, leaving him to draw his own conclusion. Of course we must add that the election was void.

Heron, Q. C.-As to costs; will your ..ordships make any order?

the questions that were left to us.
MONAHAN, C. J.-No; we will merely answer

IRELAND.] THE Mayor, Aldermen, and Citizens of CARLISLE v. Graham and ANOTHER. [Ex. committed the respondent was a "candidate at an | singula singulis does not apply in a case of this election." A candidate is defined to be a person elected to serve in Parliament at such election, or nominated at such election, or who shall have declared himself a candidate after the issue of the writ or dissolution. The declaration could not be extended back further than the time the writ was delivered to the sheriff. Therefore before that time the respondent did not come under either of these definitions. He may have declared himself a candidate before the issue of the writ, but that did not make him a candidate within the meaning of the 4th section amenable to its provisions. Supposing the Mutiny Act contained a clause that an officer playing billiards should forfeit his commission, and that he was subsequently brought up before a court martial on a charge of playing billiards before he had got his commission, what would be his answer to the charge? Simply that he was not an officer when he played the billiards. The statute in question says that every candidate who shall do certain things shall be guilty of treating. Where was the justice of charging the respondent under this with acts done by him before he was a candidate any more than in charging an officer with something which he was only prohibited from doing as an officer? As to the argument founded on the words "before the election" in the section, it must be borne in mind that the definition of a "candidate at an election was changed since then, and that while the old definition stood a person may have been a candidate before the election, and liable for acts done as such before the issue of the writ; but the new definition by which a person cannot become a candidate before issue of the writ, impliedly repeals such portion of that section as speaks of treating before the election, i. e., before the issue of the writ.

MONAHAN, C. J., (without calling on Heron, Q.C., for a reply).—The question for us is a simple one. We would not dispose of the case now, if there was much difficulty; but the Act of Parliament is very clear unless the lawyers are able to make a difficulty out of it. The Corrupt Practices Prevention Act enacts in terms that every candidate at an election who shall corruptly by himself or by any other person or persons on his behalf corruptly (that is the governing word) at any time either before, during, or after an election directly or indirectly give, or procure, or be accessory to giving or procuring of meat, drink, or entertainment, to any electors in order to be elected, or for being elected, or for the purpose of corruptly influencing such persons, shall be deemed guilty of the offence of treating, and shall forfeit the sum of 50l., and so forth. In that Act of Parliament there is a section defining who is to be a "candidate," and that particular section is repealed by the 3rd section of 21 & 22 Vict. c. 87, which enacts that so much of the 38th section of the previous Act as defines a "candidate" shall be repealed, and that in substitution of it candidate shall include all persons elected to serve in Parliament at such election, and all persons nominated as candidates at such election, or who shall declare themselves candidates on or after the issuing of the writ, provided that nothing therein contained shall impose any liability on any person nominated without his consent, &c. The definition of "candidate," therefore, includes "all persons elected to serve in Parliament" and if you substitute that definition for the word candidate in the 4th section, you will have "Any person elected at such election who shall, by himself or any other person on his behalf, at any time, either directly or indirectly, give entertainment, he shall be guilty of treating.' There the case is clear. We have not a shadow of doubt that the principle of rendering

Agent for the petitioner, Edward Green Foley.
Agent for the respondent, Lawrence Mooney.

COURT OF EXCHEQUER.
Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristers-at-Law

May 24, 25, and 26, and July 2, 1869.
THE MAYOR, Aldermen, anD CITIZENS OF
CARLISLE. GRAHAM AND ANOTHER

The plaintiffs formerly had, by grant from the Crown,
a several fishery in a portion of a tidal river. The
waters of that portion of the river gradually deserted
their original course, and flowed in a new channel over
the land of a private proprietor:

Held, that the several fishery of the plaintiffs was not transferred from the old to the new channel.

This was an action of trespass to the plaintiffs' several fishery in the river Eden, in the county of Cumberland.

The defendants pleaded: 1. Not guilty. 2. That the said several fishery was not the plaintiffs', as alleged. 3. That the soil on and over which the said alleged fishery was at the said times when, &c, was and still is the soil and freehold of the Right Hon. William, Earl of Lonsdale, and that the defendants committed the acts complained of by his leave and licence, and as his servants, and by his_command. 4. That the soil, &c., was the Earl of Lonsdale's, as in the 3rd plea alleged, and that he demised it to the defendants.

The plaintiffs joined issue on the defendants' pleas, and replied-Secondly, to the third plea, that the river Eden in the declaration mentioned was a river in the county of Cumberland, in which the tides and waters of the sea flow and reflow, and that the Corporation of Carlisle, from time whereof the memory of man runneth not to the contrary, had had and enjoyed, and still ought to have and enjoy, a several fishery in the said river. Thirdly, to the third plea, alleging that, from time whereof the memory of man is not to the contrary, until and at the time of the grant thereafter mentioned, the Kings of England, in right of the Crown of England, were seised of and entitled to a several fishery in the said river, and that King Edward II. granted the said several fishery to the corporation. Fourthly, to the fourth plea, repeating the allegation in the second replication to the third plea, and further alleging that the plaintiffs were, before and at the time of the alleged lease and demise to the defendants by the said Earl in the fourth plea mentioned, by virtue of the premises in the replication, possessed of and entitled to the said several fishery. Fifthly, to the fourth plea, repeating the allegations in the third replication to the third plea, and alleging that the plaintiffs were, before and at the time of the

Ex.]

THE MAYOR, ALDERMEN, And Citizens of Carlisle v. GRAHAM AND ANOTHER.

alleged demise to the defendants by the said Earl, by virtue of the premises in the replication, possessed of and entitled to the several fishery.

The defendants rejoined, taking issue on the replications.

The action was tried before Lush, J. at the Spring Assizes at Carlisle, in 1868, when the facts appeared to be as follows:-The plaintiffs were the corporation of Carlisle, and claimed to be entitled to a fishery in a certain portion of the river Eden, called the Goat. The defendants claimed under a lease from the Earl of Lonsdale, who was owner of the soil of the Goat.

It appeared that originally the river Eden, which in that part was a tidal river, flowed along a channel now called the Loop, in which the corporation of Carlisle had a several fishery. The Goat was at that time a ditch with very little water in it, and at parts entirely dry. In 1693 the waters of the river began to pass down the Goat, and in process of time they ceased to go down the Loop altogether, except occasionally during freshes, and the Goat became the course of the river. The corporation now claimed to have a several fishery in the Goat as they formerly had in the Loop.

The evidence, which was very voluminous, and the facts upon which the decision of the court proceeded, are fully set out in the judgments. The learned judge at the trial directed a verdict to be entered for the defendants, with leave to the plaintiffs to move to enter it for themselves for 40s. damages.

A rule nisi was accordingly obtained.

Manisty, Q. C., T. Jones, Q.C., and R. G. Williams showed cause.-Such a right as the plaintiffs claim cannot be created since Magna Charta unless it be granted by the Crown as having been previously owner of the soil of the river and the fishery. The land over which the new course of the river goes is not the soil and freehold of the Crown, but of the Earl of Lonsdale. The plaintiffs are seeking to make themselves the possessors of a new several fishery on the soil of a private individual. They also contended that the plaintiffs had lost the right of fishery, if they ever had any, over the new course of the river, by non-user for more than sixty years. They cited

The Fishery case, Davy's Reports, 55; Rex. v. Old Alresford, T. Rep. 358; The Duke of Somerset v. Foywell, 5 B. & C. 875; Holford v. Bailey, 13 Q. B. 426 ; Marshall v. Ulleswater Steam Navigation Com pany, 3 B. & S. 732; 8 L. T. Rep. N. S. 416. Mellish, Q. C., and Kemplay, supported the rule. The plaintiffs are entitled to the same rights of fishery in the new course of the river as they had in the old. The river, in its new course, is a tidal or navigable river. All public rights are transferred from the old course to the new. The new course is a highway, just as the old was. Why is it any greater hardship upon the private proprietor that a private right of fishery should also be transferred? The river being tidal, the fishery is certainly not his. Then, if not the plaintiffs', the right of fishery belongs to the public. They also contended that the plaintiffs' right had not been barred by 3 & 4 Will. 4 c. 27, s. 3, on the ground that that Act applied only to corporeal hereditaments, and that there was no evidence that they had ever abandoned their right or dedicated it to the public. They

cited

Lord Hale, De Jure Maris, 11;

Attorney-General v. Lord Lonsdale, L. Rep. 7 Eq., 377; 38 L. J. 335, Ch. ; 20 L. T. Rep. N. S. 64; Re The Hull and Selby Railway Company, 5 M. & W., 327;

Murphy v. Ryan, 2 Ir. Rep. C. L. 143;

Ex.

Gann v. Whitstable, 11 H. L. 192; 9 L. T. Rep.
N. S. 263;

Duke of Somerset v. Foywell, 5 B. & C. 875.

July 2nd.-The following judgments were delivered.-KELLY, C. B.—In this action the plaintiffs claim a several fishery in a portion of the river Eden called the Goat, about half a mile in length, and extending from a point marked upon the plan which was laid before us as Thornbush Draught (Back o' Garth) to Bank End Pool. The river Eden is a tidal river, and the plaintiffs are entitled to two several fisheries, one called the Free Boat, and the other the King Garth, derived under grants and charters of Henry III. and Edward II., confirming more ancient grants anterior to Magna Charta. The Free Boat fishery extends from the highest point to which the tide flows to the point at which the King Garth fishery begins; and the King Garth fishery from that point to the head or upper part of the Goat, and thence formerly proceeded eastward in a semicircular course along what was once a portion of the river Eden, and which has been called in argument the Loop, and fell into the old river near Bank End Pool at the lower end of the Goat. It was at one time contended that the King Garth fishery continued throughout the semicir cular loop to Bank End Pool; but it was afterwards admitted and is the fair result of the evidence, that it terminated at or near a point called Cargo Holme, and that the fishery from that point to Bank End Pool belonged to the Earl of Lonsdale or his predecessors in title, the corporation being entitled only to a third boat or draft. In this part of the river before or about 1693, the waters of the Eden began to recede from the Loop, and to pass up and down the Goat, which was at that time a ditch with very little water in it, and at parts entirely dry. The soil of the Goat, the lands on both sides of it, and the fishery throughout the whole course of the river from Bank End Pool to the sea, have belonged to the Lowther family, now represented by the Earl of Lonsdale under whom the defendants claim, from the earliest times to the present day. In 1693, when the fish began in any numbers to make their way up the Goat and so to desert the Loop and the King Garth fishery of the plaintiffs, a deed was made by which Sir John Lowther granted to the corporation liberty to fix posts and stakes, and to use boats and spread nets, and other utensils for fishing, for the more easy and better management of the King Garth fishery. The defendants allege that this was with a view to the erection of a weir or dam, and by that and other means to stop the passage of the fish up the Goat, and to turn them into the Loop and the fishery of the corporation. The plaintiffs insist that it is the effect of this deed to recognise their right to fish in the Goat. It is unnecessary to pronounce any opinion on this point. The evidence shows that in fact the waters of the Eden at length, by slow degrees, altogether receded from the Loop and made themselves a passage through the Goat, leaving the whole of the Loop dry land, and converting the Goat into a permanent integral portion of the tidal river. Between 1693 and 1760, several leases were granted by the corporation of their fisheries of King Garth and Free Boat, and in one of them, of 1711, they covenanted for the quiet enjoyment of the fishery In 1723, 1744, and 1755, the Lowthers granted leases called King Garth and Goat, and other the premises. of all their fisheries in the Eden to the corporation. The last of these leases expired in 1758. In 1760 a bill in Chancery was filed by the corporation against Sir James Lowther to establish their right inter alia to fish in the Goat. Evidence was taken upon depositions, the result of which was certainly far from

[Ex.

Ex.] THE MAYOR, Aldermen, and CITIZENS OF CARLISLE v. GRAHAM AND ANOTHER. supporting the claim of the corporation; but it is | Murphy v. Regan, 2 Ir. C. L. Rep. 143, O'Hagan, J., in really immaterial whether this was so or not, for, delivering the judgment of the court, says, "But inasmuch as the right of a fishery in the corporation whilst the right of fishing in fresh waters in which could only be derived from a grant or grants the soil belongs to the riparian owners is thus exanterior to Magna Charta, and the Goat was mostly clusive, the right of fishing in the sea its arms and dry ground until the 17th century, it is clear that estuaries, and in its tidal waters wherever it ebbs the claim of the corporation depends upon whether, and flows, is held by the common law to be publici in point of law, the fishery to which they were juris, and so to belong to all the subjects of the entitled in the Loop when it formed a part of Crown, the soil of the sea, and its arms and estuaries the tidal river was transferred to the Goat, and tidal waters, being vested in the Sovereign as a and became their several fishery therein when trustee for the public. The exclusive right of fishthe waters had receded from the Loop and flowed ing in the one case, and the public right of fishing into and through the Goat, making it a portion of in the other, depend upon the existence of a prothe river. The fishery suit seems to have termi- prietorship in the soil of the private river by the prinated in a compromise, for no decree is to be found; vate owner and by the Sovereign in a public river reand three years later, in 1763, and from that time spectively." And this is the true principle of the law 1781, a number of leases appear to have been granted touching a several fishery in a tidal river. If thereby the corporation to their tenants, not only of the fore the right of the Crown to grant a several fishery Free Boat and King Garth fisheries, but of all the in a tidal river is derived from the ownership of the fisheries of the Lowther family within the river soil which is in the Crown by common law, a several Eden. The last of these leases expired in 1784. fishery cannot be acquired, even in a tidal river, if The corporation must therefore have taken leases the soil belong not to the Crown, but to a from the Lowthers of their fisheries in the Eden subject. And all the authorities, ancient and between 1760 and 1781, though none such appear modern, are uniform to the effect that if by upon the case. From 1784 to 1794 the Free Boat the irruption of the waters of a tidal river a new fishery appears to have been leased by the corpora- channel is formed in the land of a subject, although tion to one Askham, or retained in their own the rights of the Crown and the public may come into hands, and from 1794 to 1842 was leased to the existence and be exercised in what has thus become late Earl Lonsdale at 321. a year. The King Garth a portion of a tidal river, or of an arm of the sea fishery and the Goat are no more mentioned after the right to the soil remains in the owner, so that 1784, except that we find that on the 12th Oct if at any time thereafter the water shall recede, and 1805 Lord Lowther appears to have purchased of the the river again change its course, leaving the new corporation their boats and nets at King Garth, and channel dry, the soil becomes again the exclusive that they on that day paid to him 105/. for twenty property of the owner, free from all rights whatsoone years' rent of the Goat fishery at 57. per annum. ever in the Crown or in the public: (see Hale De From 1842 to 1866, the year before this action was Jure Maris, pars prima, Hargreave's Tracts, pp. 5, 6, brought, one Ralph held the Free Boat fishery under 11, 13, 16, 37.) If, then, the title of the corporation the corporation, and the Goat fishery under Lord to the fishery is derived from a grant by the Lonsdale. Such are the leading facts of the case, Crown, and the title of the Crown to grant from and upon these the question arises whether, the ownership of the soil, how can the corporation upon the change in the course of the river claim a right to the fishery in the Goat, where the from the Loop to the Goat as above described, the soil does not and never did belong to the Crown? corporation became entitled to the several fishery Other difficulties present themselves in the way of in the Goat to which they had been before entitled this claim. Throughout what portion of the Goat in the Loop or ancient course of the river. The can the King Garth several fishery be extended? defendants deny their right to any fishery at all Not to the whole of it, for the fishery of the corpoin the Goat, and insist that, upon the receding of ration did not extend throughout the whole of the the waters from the Loop, the several fishery came Loop; nor to the same length of space as it occupied to an end at the point at which the Loop began. in the Loop, for the Goat and the Loop are not And we are called upon to decide the question of equal length, the Goat being much shorter which now arises for the first time-is the several than the Loop. Besides, the grant to the corfishery of a subject in a tidal river, the waters of poration must have been of some definite portion which permanently recede from a portion of its of the river, inasmuch as the King Garth course, and flow into and through another course fishery began where the Free Boat fishery where the soil and the land on both sides of the ended, and ended where the Lowther fishery began. new channel thus formed belong to another subject, How then can a several fishery in the Eden, from transferred from the old to the new channel, and so the lower end of the Free Boat fishery to a point a several fishery created in and throughout such near Cargo Holme in the Loop, be converted into a new channel, or in some, or if in any in what part fishery from its upper terminus to some undefined of it? No authority has been cited at the bar, nor point on the Goat? If then the claim of the coris any to be found in the books, to the effect that poration cannot be maintained upon the ground that under such circumstances a several fishery is ex- the fishery was transferred from the Loop to the tended into or created in the new channel thus Goat, it is clear that it cannot be maintained at all. formed in the tidal river. It is said in Rolle's The Goat has now become a portion of a tidal river Abridgment, and appears to have been remarked by or arm of the sea; and a several fishery there Thorp, J. in a case in the Year Books, 23 Edw. 3, cannot exist in a subject but by a grant from c. 93, that wherever the tide flows and reflows it the Crown anterior to Magna Charta; and until may be called an arm of the sea; and if the some period of time between 1693 and 1760 the Goat water be a highway, and changes its course was dry land, where no fishery could have existed. from one soil to another, still it becomes a It was argued for the plaintiffs that the grant by highway there where the water flows, as it was Sir John Lowther in 1693 conferred or recognised a in its ancient course, so that the lord of the soil right to fish in the Goat, and that the corporation cannot disturb the waters in this new course. have exercised the right at various periods between But this proposition if true as regards the use by 1693 and 1805; but, the Goat having become a porthe public of the tidal water as a highway, or the tion of a tidal river, no grant by a subject, and no exercise of any other public right, fails to show that length of user by a corporation since 1693, even if the a private right to a several fishery arises within the grant of 1693 could be thus construed and any evinew course of the tidal waters. In the case of dence existed of such user, could confer a right to a

sea.

Ex.] THE MAYOR, Aldermen, aND CITIZENS OF CARLISLE v. GRAHAM AND ANOTHER. [Ex. several fishery therein. The claim of the corpora- | Goat on the formation of a channel, and before tion, therefore, altogether fails. In the view thus taken of the principal points in the case, it becomes unnecessary to consider whether the right to this several fishery, if it ever existed, has been lost or extinguished by non-user or otherwise. Imay, however, observe that, supposing the Acts of Parliament which in effect may be called statutes of limitation touch ing claims to property corporeal and incorporeal to be inapplicable to the case before us, it is yet difficult to sustain a claim to a several fishery in a tidal river after a non-user for nearly a century, and where, supposing no several fishery to exist, the public nay claim a right to fish by reason of the waters having become a portion of an arm of the It appears from the evidence that from 1784 to 1805 the corporation paid a rent of 51. a year to the Lowthers for the Goat fishery. It is said that this was a payment made under the grant of 1693, and it may be so; but yet the payment, whether made under or with reference to that grant or not, being admitted by the corporation to have been made for the Goat fishery, is wholly inconsistent with a right in them to a several fishery in the Goat; while, on the other hand. one Ralph has enjoyed a fishery there for upwards of thirty years last past under the Earls of Lonsdale. If it be possible, therefore, by non-user to dedicate a fishery in a tidal river to the public, the facts of this case afford some evidence of such a dedication between the year 1780 and the present time. Upon these grounds I am of opinion that the claim of the corporation is not sustained; that the verdict for the defendants must stand; and that the rule must be discharged.

BRAMWELL, B.-I am of the same opinion; but I desire to add few observations, as the point argued before us was one of novelty. In this case the question is, not whether the defendants have any and what right, but whether the plaintiffs have a several fishery. The burden of proof is on them. They must prove title to a several fishery which existed before Magna Charta. They say that they do so by showing a several fishery in a part of the Loop, and that the Goat is a new tidal channel in place of the Loop, and so they say they have a several fishery in a part of the Goat. It is for them to show affirmatively why this does follow as a consequence on the change in the course of the river, not for the defendants to show why it does not. It is difficult to prove and to argue a negative, and I might content myself with saying that I see no reason why the alleged consequence should follow. But the argument for the plaintiffs I understand to be this: that the plaintiffs had a fishery in the Eden from a certain point down the river, and that from that point down the river now leads along the Goat; therefore the plaintiffs' fishery is there; the fishery was formerly along the then public highway of the Eden, therefore it is now along the new public highway of the Eden. I repeat, I think it would be enough to say as to this argument that, though the premises are true, the consequence does not follow. The plaintiffs had a several fishery, which no doubt must have been granted or acquired by metes or bounds; the locus in quo is not within those metes and bounds. The plaintiffs had a several fishery over the soil and freehold of the Crown; this is not the soil and freehold of the Crown. It may be subject to the public right of navigation as a highway; but how has it become subject to the right of the plaintiffs? When did it so become? As the change of the river's course was gradual, there must have been a time when the river ran in both channels, and fish were found in both. Had the plaintiff at that time a several fishery in both channels? Suppose the owners of the soil of the

evidence of dedication to the public, had thought fit, as they might have done, to stop the inlet of the waters, could they not have done so notwithstanding there were fish in the Goat? I should think they could. But if so, they could destroy the plaintiffs' fishery; so that it would be a several fishery in the plaintiffs, with a right to another to destroy it. Again, suppose the plaintiffs cleansed out the old Eden, would they not have a several fishery there? And can they have a right to both waters under a grant within the metes and bounds of which both waters certainly would not be? Further, I think the right to grant a several fishery arises from the ownership of the soil. But the Crown is not, nor is shown ever to have been, the owner of the soil of the Goat. The question in this case arises for the first time, and I think the plaintiffs do not give us sufficient reasons for answering it in their favour. Reference was made to Rolles Abridgment, title Chemin, and to a case in the Year Books 23 Edw. 3, c. 93, where Thorp, J. says that wherever the tide flows and reflows it may be called an arm of the sea, and if the water be a highway and changes course from one soil to another, still it becomes a highway there where the water flows as it was in its ancient course, so that the lord of the soil cannot disturb the waters in their new course. This may be true as regards the public right of navigation, or any other public right, but does not establish the right to a several fishery in the new course of the river. But there is a further consideration which I think fatal to the plaintiffs. If they have a several fishery in the Goat, its extent must be capable of ascertainment, not for the purpose of this action, as the defendants have fished the whole length of the Goat, but in point of law it must be a fishery from some one definite point to some other definite point. There must be some rule by which it can be ascertained; but in fact there is no such rule here. It is not the whole length of the Goat, nor do I think a rule-ofthree sum would ascertain the matter-viz., as the length of the Loop was to the length of the Goat, so is the length of the old fishery to that of the new. Nor can I see that this solution, or one reaching by a line drawn from the terminus of the fishery in the Loop to the Goat, would be just or reasonable to the owners of the fishery below that of the plaintiffs. It seems to me therefore that, even if the plaintiffs, had they been the owners of the fishery the whole length of the Loop, could (as I think they could not) have made title to the Goat, that not being such owners the whole length of the Loop, they cannot. The measure of their right is lost. I have said nothing about the fact that the plaintiffs themselves caused this desertion of the old and formation of the new channel; but it certainly does seem a strong thing to say that by their own act they have acquired the right over another's soil. I think this consideration fatal to them, even supposing that they would have been right if the new channel was the work of nature. I think, therefore, the defendants entitled to judgment. As to the second point, it is unnecessary to decide it with the opinion I have, but I may say that as at present advised I could not decide it in favour of the defendants, for it seems to me the Statute of Limitations applies, and 1 can see no sufficient evidence of an abandonment to the public of this right, if it ever existed. My brother Channell concurs that our judgment should be for the defendants. Rule discharged.

Attorneys for plaintiffs, Gray, Johnston, and Mounsey.

Attorneys for defendants, James, Curtis, and James.