The Sun.
London, England, 1834-11-11 00:00:00

BROOKE V. GIBBART.

Mr. BICKERSTETH appeared in this case on behalf of the
plaintiff. He proceeded to state the facts of the case.
The plaintiff was a gentleman, the owner of certain lands
situated in the parish of Hever, in the county of Kent, and
the defendants were the tenant and owner of a water-mill
situated in the same parish. The bill was filed to restrain
the defendants from damming or obstructing a certain
stream that skirted the plaintiff's property. The plaintiff's
land consisted of different portions called the clover field,
Gibbart's meadow, orchard, and Calf's plat. At the west-
ern extremity of the clover field was the defendant's mill,
and along the meadow ran the stream in question, till,
taking a northern direction, it reached the defendant's
mill. This land had previously to the year 1816 belonged
to a gentleman of the
,name of Smith, who about that
time sold it to a person of the name of Ashby, and the deed
of this conveyance bore date the 2d of June, 1816. Soon
after the execution of this deed some discussion took place
between Mr. Ashby and Mr. Smith's son respecting the
supply of water to the mill, and accordingly a memoran-
dum to the following effect was drawn up and indorsed
on the back of the deed :—" Previously to the date
and execution of the within-written indenture between
Mr. John Smith and Mr. William Ashby, Mr. John
Smith for the consideration herein-mentioned does cove-
nant and agree for himself, his heirs, and assigns for ever
with Mr. William Ashby that it may and shall be lawful
for the said William Ashby to pen and dam up the water
as high as the top of the present bay at the west side of the
millpond, adjoining the orchard." It then went on to pro-
vide, in case of any damage being done, that W. Ashby
should pay such sum as any two respectable persons to be
chosen shall direct and adjudge. Shortly after this one of
Mr. Smith's sons became the tenant of the mill, and he
formed a canal along the northern sides of the meadow
and clover field, and at a certain point, marked on the
plan B, made a dam or weir-stock to give greater force
to the water flowing in that direction. In the year
1827, the present plaintiff, Mr. Brooks, became the pur-
chaser of certain other lands which Mr. Smith had not
conveyed to Ashby. The plaintiff had not long entered
into possession when he found himself seriously incon-
venienced by the penning up of the water. He made
frequent complaints but without effect. About the year
1831, the defendant, for the purpose' of obtaining an
additional power of water, formed a pen-stock, consist-
ing of a sort of flush dam, and by means of this da-
maged the plaintiff's lands in two ways. The first was by
keeping the water at too great a height, and thereby pre-
venting a proper drainage of the land ; and the second,
frequent floods. The bill was filed praying that the de-
fendant might be restrained from damming or obstructing
the ancient stream, and he (Mr. Bickersteth) conceived
that no authority could be produced to support a continu-
ance of this great injnry to his client. The contents of the
memorandum were not disclosed until after the filing of the
bill, and the defendant asserted that they were entitled
under that memorandum to do all that they had done.
The defendants had acted contrary to that memorandum,
for the pen-stock that it provided should be formed was
only in lieu of another, and yet they made the new one
considerably higher than the former dam. Besides, there
was this extraordinary circumstance connected with the
memorandum, it having been signed by Mr. Smith only a
few days before his death. He (Mr. Bickersteth) appre-
hended that the questions of law could not be disputed,
and he thought under the circumstances of the case that
the plaintiff was entitled to the relief he sought.
Mr. DICKSON, after reading the affidavits filed in behalf
of the plaintiff, addressed the Court at great length on the
same side. _ _ _

Mr. PEMBERTON appeared for the defendants. His
Learned Friend had said that the law affecting the present
case could not be doubted. He (Mr. Pemberton) differed
from his Learned Friend, for he believed the law of the
Court to be not to interfere in such cases as the present
unless either destroying the inheritance of a property, or
preventing a multiplicity of suits or some privity of title,
between the plaintiff and defendant, could be distinctly
proved. In support of this position the Learned Gentle-
man proceeded to cite all the cases which bore upon this
point. The Learned Gentleman was proceeded, but it
then being three o'clock,
His HONOUR postponed the further hearing of the argu-
ment till to-morrow (this day).
During the course of the sitting Mr. Preston took his
seat within the bar, being appointed a King's Counsel.

COURT OF KING'S BENCH, Nov. 10.

GODSON, &C., V. FREEMAN.

Mr. GODSON moved for a rule to show cause why the ver-
dict given for the defendant in this case should not be set
aside and a new trial granted, on the grounds—first, of a
misdirection • and, secondly, because the verdict was against
evidence. This was an action on an attorney's bill. The
Statute of Limitations had been pleaded, but there was evi-
dence to show that that Act did not apply. The defendant
was the tenant of the Rev. T. Clarke, vicar of Overbury.
There were some persons who wished to assert a right of
pathway across some fields belonging to the vicar. The
defendant was instructed by the vicar to resist the attempt,
and was indemnified for the costs to which he might
be put in doing so. The defendant, however, exceeded
the vicar's instructions, and mixed up personal mat-
ters with the affair of the pathway. The vicar then
said he should not have anything further to do with
it, on which the plaintiff of course declined proceeding
with the conduct of the business. The defendant, how-
ever, insisted on proceedings going on, and gave the plain-
tiff a written retainer to act for him. At the trial of the
cause before Mr. Justice Williams, at the last Assizes at
Worcester, the defendant's liability was, for the first time,
disputed, and the Learned Judge left it to the Jury to say
whether the plaintiff had or had not, in fact, given credit to
the defendant, or whether he had given credit to a Mr.
Clarke. The Learned Counsel submitted that this was a
misdirection, and that the Jury who had adopted it, and
found a verdict for the defendant, had given that verdict
against the evidence in the cause.
The Court did not think there was evidence to authorize
the finding of the Jury.
Rule to show cause granted.
WILTON V. CHAMBERS.

Sir J. SCARLETT in this case, which has been for so long
a period constantly before the public, appeared on behalf of
the plaintiff, and said that a rule had been obtained, calling
on him to pay a sum of money which he had levied into
Court. The Learned Counsel prayed that the Sheriff might
be allowed to deduct his poundage therefrom.

Mr. F. POLLOCK stated that in the first instance Mr.
Chambers had contested the commission of . bankruptcy
issued against him, but being unsuccessful, the commission
was afterwards disputed by Mr. Wilton, who was the attor-
ney. The mode of doing this was by commencing an action
against 111 r. Chambers for costs incurred in disputing the
commission. Judgment was confessed for 1,6001., and the
plaintiff took out execution for that sum. •
The Court, interrupting the further discussion on this
point, made the rule absolute as to the Sheriff paying in the
money, after deducting the poundage.