1878 Rameshur Pershad Narain Singh v. Koonj Behari Pattuk. J.C. decree of the subordinate judge. In that decree the right is declared in terms which are, in their opinion, too wide and general, and they have already observed that the specific order to close the assumed new western channel is supported 'neither by allegation nor by sufficient proof. They also think that it was not correct to insert in the decree a declaration of the plaintiff's right to scour the khonwa. Prima facie, and in the absence of evidence to the contrary, such a right is presumed by law to be incident to the right to the flow of the water, but no issue was raised on this point, nor does it appear that any effort of the plaintiff to cleanse the watercourse has been obstructed by the defendant. Their Lordships will, therefore, humbly advise Her Majesty to reverse both the decrees below, and in lieu thereof to direct that a decree be passed in favor of the plaintiff, declaring that the plaintiff has a right in the overflow of water discharged from the Mahooet Tâl, whenever the same is discharged by the defendant, and that such overflow ought to be discharged into the khonwa on the eastern side of the said tâl, and to flow through the same towards the Chahul Tâl in the accustomed manner for the purpose of irrigating mouzah Chahul and the other four mouzahs of the plaintiff mentioned in the plaint; and also declaring that after the defendant's right to the use of the water of the said tâl for the purpose of irrigating the lands of mouzah Mahooet by proper and requisite channels and other proper means has been satisfied, and subject thereto, the water which may remain after such use by the defendant, ought to flow, in the accustomed channels and manner, towards the Chahul Tâl for irrigating the said mouzahs of the plaintiff, without being diverted therefrom, otherwise than by such diversion as may 134] be occasioned by the irrigation of the *lands of mouzah Mahooet in a due and proper manner as aforesaid; and also that by the said decree it be ordered that the grandees marked No. 1 and No. 2 in the Ameen's map be removed, and that the new kurrah from the said khonwa shown in the same map, from the spot marked by the letter alif to the spot marked by the letter ba be closed; and that it be further ordered that the defendant be enjoined not to discharge or divert the overflow of the Mahooet Tâl, or the water remaining after irrigating mouzah Mahooet, as aforesaid, in any direction or manner contrary to the above declaration of right. Their Lordships consider that the plaintiff is entitled to receive from the defendant his costs incurred in the court of J.C. Melbourne Banking Corporation v. Brougham. 1879 the subordinate judge of Gya, but as an appeal to amend and limit the decree of that court became in their opinion necessary, they think that the parties ought to pay their own costs respectively in the High Court, and they will advise Her Majesty accordingly. The appellant will have the costs of the appeal to Her Majesty. Solicitor for the appellant: T. L. Wilson. Solicitors for the respondents: Watkins & Lattey. [4 Appeal Cases, 135.] J.C., Nov. 27, 28, 29, 30; Dec. 3, 4, 5, 1878. [PRIVY COUNCIL.] *DAME ADELAIDE CATHERINE AUBERT DE GASPÉ [135 et al., Plaintiff's; and ANTOINE BESSENER and Others, Defendants. ON APPEAL FROM THE COURT OF QUEEN'S BENCH, QUEBEC, CANADA. [SIX CONSOLIDATED APPEALS.] Code of Civil Procedure (Lower Canada), 88. 946, 947, 948, and 52-Possessory Action-Nature of Possession required to maintain Possessory Action. The object of a possessory “action on disturbance" within the meaning of and governed by sects. 946, 947, and 948 of Civil Procedure Code of Lower Canada must be definite and certain, and if a piece of land, must be capable of being distinguished by known if not visible metes and bounds, or by some description within sect. 52 of the same code. The possession to be proved must be une possession annale, and also a possession capable of being the foundation of a title by prescription, continuous and uninterrupted, peaceable, public, unequivocal, and "à titre de proprietaire." Held in this case that the plaintiffs had failed to prove such a possession of the land in question as was sufficient to maintain a possessory action. [4 Appeal Cases, 156.] J.C., Dec. 6, 7, 10, 1878; Jan. 25, 1879. *MELBOURNE BANKING CORPORATION, Limited, De- [156 fendants; and JOHN BROUGHAM, Plaintiff. ON APPEAL FROM THE SUPREME COURT OF VICTORIA. Powers of Official Assignee-Release of Equity of Redemption to the MortgageeVictorian Insolvency Statute, 1865-Corporation bound by Agreement not under Seal. A release of an insolvent's equity of redemption to the mortgagee is not prima facie beyond the scope of an official assignee's authority; and sect. 27 of the "Insolvency Statute 1865," of Victoria, clearly contemplates the exercise of such authority. 1879 In re Ball's Patent. J.C. Where the consideration for such a release is an agreement not under seal by a corporation (mortagee) to abstain from proving any portion of its debt, and such agreement has been acted on by accepting the release, held, that the corporation is bound thereby, and that the consideration has not failed. 171] [4 Appeal Cases, 171.] J.C.(*), Jan. 15, 16, 17, 1879. [PRIVY COUNCIL.] *In re BALL'S PATENT. Admissibility of Evidence-Notice of Objections-Rule 6 passed under 5 & 6 Will. 4, c. 83. It is sufficient, prior to tendering evidence of instances of anticipation, to state the grounds of objection to the extension of letters patent without stating all the particulars of those objections. In this matter, which was a petition in the usual form for the extension of the term of certain letters patent granted to one of the petitioners, James Ball, and dated the 2d of February, 1865, for improvements in the manufacture of sheepshears, a question of practice arose as to the admission of evidence, having regard to the notice of objections filed by the opponents. The notice of objections stated several grounds of opposition, viz., smallness of merit and of utility of the invention; the petitioners had been sufficiently remunerated, or, if not, they themselves were to blame for the insufficiency; want of novelty; extension if granted, would unduly restrain trade and would be to the public detriment; insufficiency of specification; allegations in the 172] petition were in *many respects untrue. The fourth and fifth paragraphs of the notice of objections were as follows: "4. That the alleged invention comprised in the said letters patent was not new within this realm at the date of the said letters patent, nor was the petitioner, the said James Ball, the true and first inventor within this realm of the same alleged invention, in proof whereof leave is craved to refer to the following documents published in England prior to the date of the said letters patent (that is to say): "The specification to letters patent granted to B. Blonk, No. 1507, A.D. 1785, the provisional specification filed with the application of letters patent of E. Brown, A.D. 1854, No. 1048, and the provisional specification filed with the application for letters patent of John Coldwell and William Coldwell, No. 1971, A.D. 1861. (*) Present :-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER. J.C. In re Ball's Patent. 1879 "5. That articles of analogous construction to sheepshears, and particularly tongs used in the manufacture of glass bottles, had been made within this realm by a process similar to that described in the specification to the said letters patent granted to the said J. Ball, and commonly used. by bottle manufacturers prior to the date of the said patent. It was a matter of common knowledge in the cutlery trade prior to the date of the said letters patent that articles of cutlery and tools could be and were manufactured by working up blanks previously stamped or cut out of sheets of iron and steel.' At the hearing, with a view to show that the manufacture by the patentee of sheep-shears wholly of steel was wanting in novelty, the opponents put to the petitioners' witnesses in cross-examination, sheep-shears constructed wholly of steel, which it was alleged had been so constructed prior to the date of the patent of Ball. The petitioners objected. Mr. Aston, Q.C. (Mr. Macrory with him), for the petitioners: By the 41st section of 15 & 16 Vict. c. 83, particulars of objections must be given in an action for infringement, and the parties are bound by those particulars. The prac tice here must be analogous. The opponents have given in their notice instances of anticipation, and they cannot go beyond those instances, or introduce *evidence of [173 which the petitioners are not warned by the filed notice of objections. The maxim expressio unius est exclusio alterius applies. Mr. Webster, Q.C. (Mr. Chadwyck Healey with him): In this court the notice of objections is filed under the 6th rule of the Orders of the Privy Council dated the 18th of November, 1835. The act 15 & 16 Vict. c. 83, has no application in this respect to the practice of this court. Evidence has been admitted under similar circumstances in this court upon several occasions which are not reported: Henry's Case; Sloper's Case. Reference was also made to Sugg v. Silber, a case decided under sect. 41 of this act (). The refusal to admit evidence in a case such as this would be greatly more serious than would be the case in an action at law. Moreover the petitioners cannot be prejudiced, because it is in the power of your Lordships to allow them every opportunity of examining into the evidence to be adduced. Mr. Gorst, Q.C., Mr. C. Bowen, and Mr. Mackenzie, for the Crown. (') Law Rep., 2 Q. B. D., 493; 21 Eng. R., 223. 1879 In re Ball's Patent. J.C. SIR BARNES PEACOCK: Their Lordships are of opinion that they ought not to exclude the evidence which is proposed to be adduced. The Rules which were passed under 5 & 6 Will. 4, c. 83 (see Order of Nov. 18, 1835, rule VI), merely require that the parties served with the petition shall lodge at the Council Office within a fortnight after such service, notice of the grounds of their objections to the granting of the prayer of the petition. Then followed the act of 15 & 16 Vict. c. 83, the 41st section of which enacted that the defendant "in any action in any of Her Majesty's Superior Courts of Record at Westminster or in Dublin, for the infringement of letters patent," and "the prosecutor in any proceedings by scire facias to repeal letters patent," should deliver particulars of objections in the manner therein mentioned, and the same section contained a proviso to the effect "that the place or places 174] at or in which, and in what manner the *invention is alleged to have been used or published prior to the date of the letters patent, shall be stated in such particulars." That section contemplated a different case from the application for extension now before their Lordships and the earlier rule of the Council was unaffected by it. Their Lordships therefore think that under the rule to which reference has already been made, it is sufficient to state the grounds of the objection without stating the particulars of those objections; and because the opponents had given as much information as they possessed to the petitioners, and craved leave to refer to certain documents, it must not be taken that they intended to say that those documents were the only instances of anticipation upon which they would rely. Moreover, the Attorney-General would clearly have the right to introduce the evidence irrespective of the notice of objections. Solicitors for the petitioners: Pitman & Lane. Solicitor for the Attorney-General: Solicitor to the Treasury. See Plimpton e. Malcolmson, 18 Eng. Rep., 649; Moak's Underhill on Torts, 655; U. S. R. S., § 4920 and cases cited in margin; Bates e. Coe, 98 U. S. R., 31; Roberts e. Walley, 14 Fed. Repr., 167. Section 4920 of the United States Rev. Stat. does not require the names of witnesses as to novelty to be given, but only the names of those who knew of the thing and where they can be found, and where and by whom the thing was used: Sutro e. Moll, 19 Blatchf., 89. See Andrews e. Cross, 19 Blatchf., 294,307. In an action for infringement of a patent, it is sufficient for the plaintiff to furnish such particulars of the infringements as show distinctly what |