remedied by the Legislature; for it is manifest that in making this order the quarter sessions have not exceeded their jurisdiction. In point of date, the 20 & 21 Vict. c. cxviii is subsequent to the 4 Geo. 4, c. 64, but when we look at the older act I think the only way to read it is this-that certain classes of prisoners shall be sent to a common gaol or house of correction according as the justices from time to time shall declare them to be applicable to such class. Thus construed, the whole section becomes clear and intelligible; and consequently the class of prisoners to which Spragg belongs cannot be imprisoned in a house of correction. SHEE, J.-I am of the same opinion. It is clear that, under sect. 4 of the 4 Geo. 4, c. 64, the justices in quarter sessions are empowered to declare, by order, to what class of prisoners every gaol and every house of correction shall be applicable; and in the exercise of this power they have declared the house of correction in Coldbath-fields to be applicable to a class of prisoners which does not include poor rate defaulters. Now, inasmuch as the justices had undoubted jurisdiction to make the order, it is clear that the defendant was justified in refusing to receive and imprison the offender in question, unless the case is altered by the later of the two statutes. Mr. Keane pressed the argument upon us, that the 20 & 21 Vict. c. cxviii, gives power to the justices making the warrant to order the imprisonment of poor rate defaulters in the common gaol or house of correction, and that this statute, being subsequent in point of time to the 4 Geo. 4, c. 64, is uncontrolled by it. But I think the two statutes, conjointly considered, amount to this-that, under the 4 Geo. 4, c. 64, the justices in quarter sessions have the power of making the orders in question, while under sect. 14 of the local act, the committing magistrates may commit the offender to such gaol or house of correction as may be appointed for the purpose by the justices aforesaid. In this case, therefore, the committing magistrate, being aware that the house of correction had by order been rendered inapplicable for the purpose, should have committed the offender to the common gaol. I think, therefore, that the defendant was justified in obeying the order of the quarter sessions in preference to that of the committing magistrate.-Judgment for the defendant. COURT OF COMMON PLEAS. SITTINGS AFTER EASTER TERM. [Before WILLES, BYLES, KEATING, and SMITH, JJ.] COMLEY, App., CARPENTER, Resp.-May 16. Turnpike Act-Tolls-Stage carriage. A Turnpike Act, after imposing tolls, exempted any horse, cart, &c., from toll on repassing a gate on the same day if the toll had been once paid; with the proviso, " That the tolls by the act made payable for or in respect of horses or beasts drawing any stage coach, diligence, van, caravan, or stage waggon, or other stage carriage, conveying passengers or goods for pay or reward, should be payable and paid every time of passing or repassing along the said road." The appellant travelled with a caravan, sometimes conveying goods and sometimes passengers; the appellant was not licensed under the Stage Carriage Act, but paid the duty on a carriage used by a common carrier:Held, that the appellant was liable to toll every time of Case stated by justices under stat. 20 & 21 Vict. c. 43. At a petty sessions held at Cirencester, an informs tion was preferred by the appellant against the re spondent; for that the respondent, on the 16th Feirs ary, 1865, being the collector of the Stratton Gate, di demand and take from the appellant 6d., the toll of horse and cart, of which the appellant was the driver the appellant being exempt from the payment of s toll by reason of toll having been paid for the passing the same horse and cart through the same gate on the same day, and the horse and cart being then retur and repassing through the same gate before twel night of the same day. The justices dismissed d information, and stated a case for the opinion of t Court. Case. It was proved that the appellant is a co carrier, travelling between Cirencester and Chel ham every Tuesday and Thursday; that he t sometimes with a covered caravan or waggen four wheels, and sometimes with a covered car or waggon on two wheels, drawn respectively by or two horses, as the weight of the load or the of the road require, and travelling at a pace not ceeding four miles an hour; that he uses such c vans principally for carrying goods for hire, but th he frequently conveys therein also passengers for b that he is not licensed under the Stage Carriage for either caravan, but pays the duties of 21. and 17. 6s. 8d. for them respectively as for curig used by a common carrier, under stat. 16 & 17 c. 90, Sched. (D.); that on the day in question, 16th February, 1865, the appellant travelled from Cirencester to Cheltenham and back, with th covered caravan on two wheels, then dram by horse; that in the morning he conveyed goods in th caravan from Cirencester to Cheltenham, sad in afternoon conveyed goods therein from Chelle to Cirencester, and in each case delivered them cording to the directions thereon, and received p ment for the carriage and delivery thereof, ac ing to a usual scale adopted by him; that be conveyed one passenger on each journey, and re payment of such passenger; that he travels the turnpike road between these towns, which is repaired and maintained under the Cirenc Roads Act, 1862 (25 Vict. c. xiii), and passes the the Stratton Gate, where the respondent is colle of tolls; that on the morning of the said day passed through the said gate, and was charged paid 6d., and on the afternoon of the same day ( before twelve at night) he repassed through the on his return, and was again charged 6d. for thei horse, drawing the same caravan, which toll be under protest. The Cirencester Roads Act, (25 Vict. c. xiii), was put in evidence, the amble of which recites stat. 6 Geo. 4, c. exli, g the said roads, or any of them." The act of repealed the 6 Geo. 4, c. cxliii, but sect. 13 coned the tolls payable under it till other tolls should ppointed to be taken under the powers of this act. toll clauses of the act of 1862 were almost the as those of the previous act. the hearing of the information, it was treated n admitted fact on both sides, that, under the acts, the sum of 6d. demanded and paid in reof the appellant's caravan on the first time of same passing the gate, was the toll legally and erly payable in respect thereof, but it was not ed or admitted whether such toll was payable er the act 6 Geo. 4, as continued by sect. 13 of the f 1862, or whether the same was payable by virtue e said act of 1862. he justices were of opinion that the caravan was 66 con gig, whiskey, hearse, litter, chaise, or other such like KEATING, J.-I am of the same opinion. I think that the justices were right. I do not see that our judgment conflicts with the decision in Eatwell v. Richmond. The difference between the act in this case and that in Eatwell v. Richmond is, that in this case the language of the act is, "conveying passengers or goods," whereas in that the words of the act were, which the carriage may appear to have is any test of conveying passengers." I do not see that the licenso liability. The SMITH, J.-I am of the same opinion. The caso found that the employment of the appellant's van was principally for the conveyance of goods, but occasionally the appellant carried passengers in the van. statute imposed a double toll on any stage carriage conveying goods for hire. The appellant's van is said the Stage Carriage Act, but it certainly carries goods not to be a carriage, because it is not licensed under for hire, and we are bound to give effect to the statute. Sect. 21 of the act imposes a toll on horses let out for hire, and toll is payable every time they pass through a turnpike gate on each new hiring. I agree with the rest of the Court in thinking this case distinguishable from the case of Eatwell v. Richmond.—Judgment for the respondent. gdon, for the appellant.-The appellant's car- EES, J.-I am of the same opinion. It appears EXCHEQUER CHAMBER. CROMPTON, WILLES, BYLES, BLACKBurn, [Appeal from the Court of Exchequer.] This was an appeal from a judgment of the Court of Exchequer, discharging a rule to enter a verdict for the defendants. The case in the court below will be found reported in 10 Jur., N. S., 637. Gray, Q. C. (Cooke, Q. C., and Cleave with him), for the appellants (defendants in the court below).The deed is not in conformity with sect. 192 of the Bankruptcy Act. It is certainly in the form given in Schedule (D.), and it has been filed and registered, and a certificate of registration obtained; but it does not comply with the provisions of sect. 192, because the required ma jority of creditors have not assented. Sect. 197 of the act does not apply, because the expression "such deed," as used in that section, must intend a deed in accordance with sect. 192. Before the passing of the Bankruptcy Act, there was no means of applying the estate of a bankrupt for the benefit of his creditors. These sections of the act were passed expressly for this purpose. Then, I say, the trusts of the deed are void, and there is a resulting trust in favour of the bankrupt. But it is said that the deed is a valid deed at common law. [Crompton, J.-Yes; you must satisfy us that the deed is not valid at common law.] But that is not the question. It is not enough to say that an estate may be administered in this way, for the benefit of all the creditors, because, in fact, the creditors have not the advantage of the bankrupt's estate being administered by the Bankruptcy Court. Toppin and Another v. Keysell (33 L. J., C. P., 225) is an authority upon this point. [Blackburn, J.-That case does not touch this point.] It is an advantage to the other creditors that the estate should be administered in bankruptcy. The debts cannot be got in so well. The deed refers to the Bankruptcy Act, and complies with its provisions in some respects, and yet the creditors are not to have the benefit of the machinery provided by the act. [He also referred to Ex parte Alexander (1 De G., S., & S. 311).] II. Matthew, for the respondents (plaintiffs in the court below), was not heard. The defendant had a reservoir full of water standing the site of old shafts, known only to his engineers, long disused. The water of the reservoir forced its down the shafts, and travelled by an underground nel through the lands of third parties into mines plaintiff, which he was then working:-Held, tha der the circumstances, the defendant was not annor for the damage caused.-Per Pollock, C. B., and I tin, B.; dissentiente Bramwell, B. The declaration stated, that the defendants possessed of certain land, situate within the tow of Ainsworth, in the county of Lancaster, except mines and veins of coal under the surface of such and the plaintiff was possessed of certain coal m lying near the aforesaid land of the defendants, by reason thereof, and of a license to him in tha: half given by the person in possession of the can hereinafter mentioned, the plaintiff was entitl use certain underground cavities, near the said for the purpose of working the said mines, and t coals from the said mines, and carrying them the the said cavities; yet the defendants so carelessly negligently constructed on the said land a certai servoir to contain water, and kept therein, in ti possession and under their care, large quantit water, and took so little and such bad care of large quantities of the said water, by reason of water which they so kept in the said reservoir premises, escaped from the said reservoir and CROMPTON, J.-We are all of opinion that the judg. ment of the Court of Exchequer is right, and ought to be affirmed. We think the deed a good deed at common law. It was no uncommon thing, before the Bankruptcy Acts, to see deeds of assignment at common law, such deeds providing that the bankrupt's estate should be administered as in bankruptcy; and there is no difficulty in doing this. It is said that some towards and into the said mines and cavities, whe creditors may be placed in a disadvantageous position the plaintiff was wholly prevented for a long t by this method of distributing a debtor's estate; that from working the same mines, and from getting the rights of a mortgagee would be different to what therefrom, and carrying the same away through they would be if administered by the Bankruptcy said cavities, and was put to great cost and exp Court; that a mortgagee might, under the deed, ob- in pumping out there from the said water, and tain a dividend without giving up the security: where- pairing the damage done thereto by the said as in bankruptcy he could only recover the difference and lost great gain and profits which he would between his claim and the value of the security. It wise have derived from getting and selling such is also said, that trustees under a deed of this description could not recover back the property of the bank- in the said mines and cavities was caused in the as aforesaid; and such reasonable fear of being dro rupt in case of fraudulent preference. That is, how-of the workmen then and theretofore employed ever, a question for the creditors who are parties to said mines, and of other subjects of this realm, the deed to consider. At common law, a debtor may working of the said mines was rendered perman assign to one creditor, to the exclusion of another. The deed imposes no hardship on the dissenting cremore expensive and more difficult than it there had been, and otherwise would have continued ditors, because they may go to the Court of Chancery if they think fit, as in other deeds, where a trustee certain coal mines, and by reason thereof, and Second count, that the plaintiff was possess fails in his duty. I think my Brother Martin, in his license to him in that behalf given by the per judgment in the court below, founds his judgment on possession of certain underground cavities ne a right basis. The deed may have been an escrow, not said mines, was entitled to use the last-me to operate till all the conditions of sect. 192 of the cavities for the purpose of working the said Bankruptcy Act, 1861, had been complied with; but and getting coals therefrom, and carrying a the jury have not so found. The deed itself is not excoals through the same cavities; and the defen pressed to be made with any reference to sect. 192. The were possessed of certain large quantities of form of the deed, though the same as in Schedule (D.), then by the defendants kept in a certain reserver is an ordinary conventional form. I think the deed to the said mines and cavities, yet the defendant is a good deed at common law, and that the property so little and such bad care of the said water, was vested in the trustees immediately on the execution of the deed. Then, it is said that there is an servoir, and flowed towards and into the said min reason thereof it escaped from and out of the implied condition that three-fourths of the creditors cavities; and by reason thereof the plaintiff was should execute the deed; but the deed is in the form long time prevented from working the said mine given in sect. 200, which assumes that the assent of from getting coal therefrom, and carrying the three-fourths of the creditors cannot be obtained.-away through the said cavities, and lost large Judgment affirmed. and profits which he would otherwise have a by getting and selling such coal, and was put to cost and charges in removing the said water, a ng the damage done by the said water to the said | beyond living memory, and old coal workings under s; and by reason of the premises, such reasonable the site of the reservoirs communicated with old coal of being drowned in the said mines and cavities workings under the land of Whitehead, by means of caused in the minds of the workmen who had other and intervening old coal workings under the tofore worked in the said mines, and of other land of Mr. Hulton, and the lands of Lord Wilton cts of this realm, that the working of the said lying north of Mr. Hulton. Soon after the plaintiff became permanently expensive and more diffi- began working the Red House Colliery, he made aro carry on than it otherwise would have been. rangements with Mr. Whitehead to get, by means of ird count, that the plaintiff was possessed of cer- the Red House Pit, the ungotten coal lying under mines and veins of coal in and under certain Whitehead's land, and accordingly worked through and the defendants were possessed of the said Whitehead's land until he came to the old coal workabove part of the said mines and veins; yet the ings in it. The Earl of Wilton became aware of this, dant so negligently, carelessly, and improperly and never objected to it. The communication thus and constructed a reservoir on the said land, opened between the Red House Colliery and the site ted and dammed up and thereon large quantities of the reservoir were completed before the reservoir ter on the surface, that by reason of the pre- itself was made. divers large quantities of the said water flowed orced their way through and out of the said rer towards, to, and into, the said mines and veins l of the plaintiff, whereby the said mines and of coal were much damaged, and the plaintiff revented for a long time from working and getoals therein and therefrom, and so lost large and profits which he would otherwise have I and made, and was put to large costs and s in removing the said water from his said and repairing the damage done thereto as aid. Averment, that, by reason of the premises, easonable fear of the danger of being drowned said mines was caused in the minds of the workheretofore and then employed in the working said mines, and in the minds of divers other ts of this realm, that by reason thereof the g of the said mines became and was made more ive and difficult to carry on than it had therehad been, and otherwise would have been, and have continued to be. Claim of 50001. s-first, not guilty; secondly, not possessed, and se of the license; thirdly, that the defendants not possessed of land as alleged. Issue on the The fact of this communication was unknown to the defendants or their agents until the damage was caused. In the course of constructing and excavating the reservoir, which took place in the year 1860, five old shafts, running vertically downwards, were met with beneath. The sides or walls of three at least were of timber, but the shafts themselves were filled with marl or soil of the same kind as that immediately around. They were not supposed to be shafts of coal mines. Engineers were appointed by the defendants to choose the site of the reservoir, and to superintend the erection of it. They were competent persons; but the arbitrator found, that they had not exercised proper care and skill in providing that the reservoir should be able to bear the pressure of water which it would contain. The reservoir was completed in the month of December, 1860. On its being partially filled with water, one of the shafts gave way, and burst downwards, and the water in the reservoir ran into the old coal workings, and arrived by the course before described at the Red House Colliery. The question for the Court is, whether the plaintiff is entitled to recover damages from the defendants by reason of the above matters. The case was argued (May 3, 4, and 5) by cause was tried at the Liverpool Summer Asefore Mellor, J., and a verdict was found for Manisty (with him was J. A. Russell), for the plainaintiff for the amount claimed, subject to a re- tiff.-A large collection of water is a thing pregnant e. In the Michaelmas Term following, a judge's with danger, and it behoves any one who makes a was made empowering the arbitrator to state for collection for his profit, to beware how he may preinion of the Court a special case, upon which judice his neighbours by mismanaging it. I do not aight be brought. The arbitrator accordingly say there was positive negligence; the case does not a case as follows:-The Earl of Wilton is the rest on that ground. In working the mines underof the greater part of the land about the spot ground, the plaintiff was only doing what he had a perthe damage complained of took place, and is fect right to do, and if the defendant injures him by e owner of the land on which is the reservoir an unwieldy and unmanageable mass of water being hich the damage proceeded. To the south of accumulated on the surface, he must stand responsible. t of land on part of which stands the defend- [He cited Smith v. Kenrick (7 C. B. 515); Tenant v. servoir, the Earl of Wilton's property is divided Goodwin (1 Salk. 21); Hodgkinson v. Ennor (4 B. & S. ip of land belonging to Mr. Hulton to the west, 229); Bond v. Williamson (15 C. B., N. S., 516); Wilontiguous slip of land belonging to Mr. White-liamson v. Growcott (4 B. & S. 149); Sybray v. White the east. To the south of these two properties (1 M. & W. 435); Chandler v. Robinson (4 Exch. 163); d is again the Earl of Wilton's. Directly south Alston v. Grant (3 El. & Bl. 128); Gale on Easements, Whitehead's land, and near the boundary, is a 369; and Broom's Legal Maxims, 327.] As to the recalled the Red House Colliery, which the sponsibility of the defendants, by reason of the enf worked and occupied by leave of the Earl of gineer's knowledge of the old mining works, see Ta(without a lease, but in substitution for an-bernacle v. Stamp (1 Ld. Raym. 264). olliery which he had held under an agreement ), paying an acreage rent. Mellish (with T. Jones), contra.-There are few decisions on this point, and the question rests mainly beds or seams of coal in Lord Wilton's land, upon principle. The rights of the parties I take to by the Red House Colliery, are continued be the same as if they were both seised in fee of the the lands of Mr. Hulton and Mr. Whitehead, properties on which they stand. Now, the right to be der the said land of Lord Wilton, in which the free from the invasion of water, is not an absolute ir was made. The dip of these beds or seams and indefeasible right any more than the right of inis downwards from about north-east to south-violability in the person; one man may receive bodily Coal under the site of the defendants' reserand in the space between the reservoirs and Mr. 1's land, had been partially worked at some time injury from another and remain without redress, because there was no fault in the other; and the maxim set utere tuo ut alienum non lædas, is not to be pushed 9 it again, is also proved by the case of Hodgkins. Ennor (4 B. & S. 229). The plaintiff's right, then, has been infringed. The defendant, in causing water to flow to the plaintiff, has done that which he had no right to do. What difference in point of law do it make, that he has done it unwittingly? I think, none; and, consequently, that the action is maintain able. The plaintiff's case is-you have violated my right; you have done what you had no right to da and have done me damage. If the plaintiff has the right I mention, the action is maintainable. If he has it not, it is because his right is one to have his mine free from foreign water, by the act of those who know what they are doing. I think this is not so. I know no case of a right so limited. As a rule, the know ledge or ignorance of the damage done is immaterial, The burthen of proof of this proposition is not on the plaintiff. to an infinite extent. Whatever may be the positioning in. But he had a right to be free from what has of the defendant, he is not guilty of trespass, for the been called "foreign water," that is, water artificially water sinks by its gravity, and that only gives an brought or sent to him directly or indirectly, by its action on the case; to support that, negligence must being sent where it would flow to him. The debe proved; and there can be no duty to provide against fendant had no right to pour or send water on to the such a danger as existed, unless there was notice of its plaintiff's works. Had he done so knowingly, it is alexistence. It is the knowledge of danger which im-mitted an action would lie; that it would, if he did poses on the owner of a reservoir the duty of erecting mounds about it; this duty furnishes no reason for that contended for by the plaintiff. The water only belongs to the defendant so long as it remains on his land, when it passes away it belongs to the land to which it goes. All the cases cited for the plaintiff, in so far as they are applicable at all to the present case, rest upon the knowledge which the defendants had of probable injury to the adjoining property. The unconditional responsibility of a proprietor for fire on his premises rests on a peculiar custom; it is, therefore, an exception to the general law, and proves the present case to be different. I rely upon Trower v. Chadwick (6 Bing. N. C. 1); see also Com. Dig., " Action on the Case-Negligence," A. 6. Sutton v. Clarke (6 Taunt. 29); Filliler v. Phippard (11 Q. B. 347); Baynall v. The London and North-western Railway Company (8 Jur., N. S., 16); and Butler v. Hunter (7 H. & Norm. 126) are distinguishable. On these general grounds I contend that the action is not maintainable; but, in addition to them, the case admits of the following argument on behalf of the defendant, viz. that allowing weight to the position of the plaintiff that the collection by artificial means of so dangerous a thing as a mass of water, imposes upon the person who collects it a liability for all consequences, where the person injured has used his land in an ordinary manner, it cannot hold good where he claims for an injury to property created by equally artificial means, and consisting of subterraneous excavations, the boundaries of which are unknown even to himself. As to the negligence of the engineers in not providing against the danger to arise from the old shafts, these shafts might have been mining marks made a hundred years ago. And the engineers were not the agents of the defendants so as to affect the defendants with notice of their existence. (See Butler v. Hunter, supra). [Bramwell, B., referred to Backhouse v. Bonomi (7 H. L. C. 503; El., Bl., & El. 654).] Manisty, in reply.-The plaintiffs were liable to the influx of any natural water, but not of artificial water. Cur, adv. vult. The learned judges, differing in opinion, delivered the following judgments seriatim : I proceed to deal with the arguments the other way, It is said there must be a trespass, a nuisance, or negli gence. I do not agree; and I think Bonomi v. Back house shews the contrary. But why is not this a trespass? See Gregory v. Piper (9 B. & Cr. 591). Wil fulness is not material. (Leame v. Bray, 3 East, (53) Why is it not a nuisance? The nuisance is not in the reservoir, but in the water escaping; as in Beni v. Backhouse, the act was lawful; the mischievous consequences was a wrong. Where two carriages come into collision, if there is no negligence in either, it is as much the act of the one driver as of the other that they meet. The cases of carriers and innkeepers are really cases of contract, and, though exceptional, furnish no evidence that the general law in matters wholly inde pendent of contract is not what I have stated. The old common-law liability for fire, created a liability beyond what I contend for here. I cannot think Trower v. Chadwick (6 Bing. N. C 1) opposed to this view. The Court held that count bad; they lay stress on the defendant's ne having notice, but I think the decision would have been, and properly been, the same, had he had tice, because it was not shewn that there was any right in the plaintiff to have his vaults so built as te impose on the defendant the burthen of pulling dow his premises in any particular way, or with any part cular care. On the other hand, the cases of Boo Backhouse (ubi sup.); Hodgkinson v. Ennor (ubi supl and Tenant v. Goldwin (1 Salk. 22, 360; 2 Ld. Raym 1059), seem in principle in point for the plaintiff. is clear, that in the latter case the Court decided tha the defendant must, at his peril, keep his filth from injuring his neighbour, for "it is a charge of right sic utere tuo ut alienum non lædas." I think, the fore, on the plain ground, that the defendant h caused water to flow into the plaintiff's mines, whi but for the defendant's act, would not have gone ther this action is maintainable. BRAMWELL, B.-The facts on which, as it seems to me, the question depends, are as follows:-The plaintiff is occupier of mines, which he has worked to the boundary of the property in or under which they are. The defendant has made a reservoir, and filled it with water, on the surface of property separated from the plaintiff's property by property of an intervening owner. The water has escaped down old shafts into old workings on the defendant's premises, has passed through these old workings in the intermediate premises, has reached the plaintiff's workings, and done him damage. The defendant was not aware of the old underground workings, nor of the communication between them. I agree with Mr. Mellish, that the case is singularly I think that the defendant's innocence, whatev wanting in authority; and, therefore, whilst it is al-may be its moral bearing on the case, is immaterial ways desirable to ascertain the principle on which a point of law. But I may as well add, that if the case depends, it is especially so here. What is the fendant did not know what would happen, his age plaintiff's right? He had the right to work his mines knew that there were old shafts on his land; krew to their extent, leaving no boundary between himself therefore, that they must lead to old workings; k and the next owner. By doing so, he subjected him- that those old workings might extend in any direc self to all consequences resulting from natural causes, tion; and consequently knew that damage might hapamong others, to the influx of all water naturally flow-pen. The defendant surely is as liable as his agents |