1821.

A tipstaff is

In the Matter of SALISBURY.

entitled to take &ALISBURY in person had obtained a rule nisi for one of the tipstaffs of the Court, to answer the matters of his affidavit. The affidavit stated, that the

a fee of six shillings, and no more, for conducting å

the Judge's

King's Bench.

prisoner from tipstaff had taken a fee of half a guinea for conveying chambers to the him from the judge's chambers, (to which he had been brought by habeas corpus) to the King's Bench prison, such fee being more than he had a right to demand, according to the table of fees affixed in the King's Bench, in pursuance of a rule of this Court.

Gurney and Platt shewed cause upon affidavits, stating, that the fee had been taken for a very long period of time by all tipstaffs in both courts, and that it was allowed by the master in costs.

The Court, however, adverting to the statutes 2 G. 2. c. 22. s. 4., and 32 G. 2. c. 28. s. 5., and the rule of court of Michaelmas term, 3 G. 2., and the table of fees settled in the following year, said, that it was clear, that the tipstaff had no right to take any other fee for taking a prisoner from the judge's chambers to the King's Bench prison, than six shillings, which was the fee allowed him in that table. They, therefore, ordered the fee so taken to be returned to the complainant. (a)

(a) See the table of fees in the rules of the King's Bench, p. 241.

BURTON, Children, and BURTON against IssITT.

A RULE nisi had been obtained for discharging the defendant out of custody, on the ground of a defect

1821.

By a deed of partnership, á

dissolution of

power was re

served to the brought partners, to use remaining

in the note delivered to him, for the payment of the sixpences under the Lords' act. The action was brought the three plaintiffs. Children, however, had ceased the name of to be a partner before the note was given, which was in this form, J. Burton, for self and partners.”

Jeremy, now shewed cause upon an affidavit, stating, that all the plaintiffs were in partnership at the time when judgment was recovered, and that, by the deed of dissolution of partnership, power was given to the remaining partners, to use the name of Children in the prosecution of all suits brought, or to be brought for recovery of partnership property, and contended that, under that power, Burton was authorized to sign the noté in this casé.

the retiring

partner in the

prosecution of all suits. In an action in which judgment had been obtained by all the partners, before it was

the dissolution,

that the remain

ing partners had authority, under that

power, to give to the defend

ant a note for

the

payment of

the sixpences,

under the Lords act, on behalf of them

selves and the

Platt, contrà, contended, that although the deed im- retiring partner. powered the remaining partners to use the retiring partner's name as a plaintiff in a suit, it did not authorize them to bind him by a promissory note or other negotiable instrument, and that, unless the instrument in question was obligatory on all the plaintiffs as a promissory note, the defendant was entitled to his discharge.

Per Curiam. This was using the retiring partner's name in the prosecution of a suit, and the note is obligatory upon him. The rule, therefore, must be discharged. Rule discharged.

1821.

Thursday,
November 7th.

The public have no common law right of bathing in the sea; and, as incident thereto, of crossing the

sea shore on foot, or with bathing machines, for that

purpose.

BLUNDELL against CATTERALL.

TRESPASS, for breaking and entering the plaintiff's close, (describing it, first, as a close called the SeaShore, within the manor of Great Crosby; secondly, as a close between the high-water mark and the low-water mark of the river Mersey, in Great Crosby, in the county of Lancaster ;) and with feet in walking, and with the feet of horses, and with the wheels of bathing machines, carts, and other carriages, passing over, tearing up, damaging the sand, gravel, and soil of the said close. The defendant pleaded, as to the trespasses committed on the close called the Sea-Shore, and on that between the high and low-water mark, a public right of way on foot, and with cattle, carts, and carriages; and secondly, as to the same trespasses, that all the liege subjects of our lord the king, had been used and accustomed to have and enjoy, and of right ought to have had and enjoyed, and still of right ought to have and enjoy the right and liberty of bathing in the sea from time to time, being over and upon the whole or any part of, or adjoining to, the said close, in which, &c., at all seasonable and convenient times, for their health and recreation, and for that purpose, of going and returning, passing, and repassing into, through, over, and along the said close, in which, &c. on foot, and with their servants, and with carriages and bathing machines, and horses drawing the same to the sea and back again; and of staying in and upon the close a necessary and convenient time for the purposes of bathing as aforesaid: And thirdly, as to

part

The plaintiff

part of those trespasses, a right of bathing and of
passing on foot only. The plaintiff took issue on these
pleas; and also newly assigned that the defendant com-
mitted the trespasses on other occasions, and for other
purposes than those in the pleas mentioned, and out of
the highway in the first set of pleas mentioned. Issue
thereon. At the trial, at the last Lancaster assizes, be-
fore Bayley J., a verdict was found for the defendant on
the first set of pleas; and for the plaintiff on the new
assignment, and on all the other pleas, subject to the
opinion of the Court on a special case.
was the Lord of the manor of Great Crosby, which is
bounded on the west by the river Mersey, an arm of
the sea. As lord of the manor, he was the owner of the
shore, and had the exclusive right of fishing thereon
with stake nets. The defendant was the servant at an
hotel, erected in 1815, upon land in Great Crosby,
fronting the shore, and bounded by the high-water mark
of the river Mersey, the proprietors of which kept
bathing machines for the use of persons resorting
thither, who were driven by the defendant, in machines,
across the shore into the sea, for the purpose of bathing,
and the defendant received a sum of money from the
individuals so bathing, for the use of the machines, and
for his service and assistance. No bathing machines
were ever used upon the shore in Great Crosby, before
the establishment of this hotel, but it had been the
custom for the public to cross it on foot, for the purpose
of bathing. There was a common highway for carri-
ages along the shore, and it was proved, that various
articles for market were occasionally carted across the
shore, although the more common mode of conveyance
for, such things was by a canal, made about forty years
ago. The defendant contended for a common law right

for

1821.

BLUNDELL

against CATTERALL

1821.

BLUNDELL against CATTERALL.

for all the king's subjects to bathe on the sea-shore, and to pass over it for that purpose, on foot, and with horses and carriages. The case was argued in last Easter term,

Gregson, for the plaintiff, contended, that there was no common-law right to bathe, independently of usage in the particular place; first, from the silence of the authorities; secondly, because such a right was contrary to analogies; and, thirdly, because it was contrary to established and acknowledged rights. As to the first point, it is sufficient to refer to Lord Hale's treatise De Jure Maris and De Portibus Maris, where, in chapters 5 and 6, he enumerates the different public and private rights applicable to the sea-shore, and creeks and arms. of the sea, and does not include this right. As to the second, it is laid down in Lord Hale, De Portibus Maris, pp. 73 and 76, and in Morgan's case, p. 51 of the same book, that the public have no right to unlade goods, or to moor or tow their vessels on the shore, without leave. The authority of Bracton, lib. i. c. 12. s. 6., cannot have much weight, for it is only copied from the civil law, and was overruled in Ball v. Herbert. (a) As to the third point, it is clear that such a right would interfere with the improvement of the shore by the lord; and that this right is in the lord appears from Sir Henry Constable's case, 5 Rep. 107., Hammond v. Digges, Dyer, 326., The Attorney-General v. Roll and Others, cited Hale, p. 27., Stockwell v. Terry, 1 Ves. sen. 115., and Warwick v. Collins, 2 M. & S. 361. (b) So, all wharfs, quays, &c. erected on the shore, might be pulled down ;

(a) 3 T. R. 261.

(b) The references are to Lord Hale's treatises, as published by Mr. Hargrave in his Law Tracts.

for