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1799.

WHALLEY

TOMPSON.

1796 demised the said closes formerly called the IVood Clofe and O.c Close and now called Little Ley ficld and Ox Meadow with all the rights members and appurtenances thereunto belonging to one Thomas Tompson the elder, who thereupon entered into and became and still is possessed of the said clofes formerly called the Wood Close and Ox Close and now called Little Ley field and Ox Meadow together with all' rights members and appurtenances thereunto belonging and held used and enjoyed the said way as aforesaid and being fo pofleffed thereof the said Defendants as fervants of the faid Thomas Tompfon the elder and by his command at the said several times when &c. passed and repassed on foot and with horses mares geldings carts and other carriages from the said King's common highway in the said parith of Weddington unto into through over and along the said clofe in which &c. to the said clofes formerly called the Wood Close and Ox Clofe and now called Little Ley field and Ox Meadow and from thence back again by the fame way to the said common highway as occasion required using the said way as an eafement and appurtenance to the faid closes formerly called the Wood Close and O.x Clofe and now called Little Ley field and Ox Meadow as it was lawful for them to do for the cause aforesaid. And this &c. wherefore &c.

General demurrer and joinder.

Le Blanc Serjt. was this day to have argued in support of the demurrer on these grounds, viz. that T. Adderley could not prefcribe for a right of way over his own foil; that he could not have the way as an easementor appurtenance belonging tooneclofe while he was seised in fee of both, since whatever right of way might have existed while the closes were separate property was extinguished by the unity of feilin (a); that being extinguished therefore it did not exist as a right of way, easement, appurtenance or

(a) See this position supported by several it hath it's being not by prescription but ex cases collected in Vin. Abr. Extinguish- jure natura, per Whitlock J. S. C. So things ment, (A. & C.) But it appears that there not issuing out of lands as parts of the profils, is a distinction between rights which are of buit due in another respect, though taken necessity and those which are merely by way within the lands, are not extinguithed by of ealement; the former are not dettroyed unity of poffeflion, Dav. 5,6. as warren, by unity of seilin; as a way to church or 35 H.6, 55, 56. Dyer 327. franchises, market, 1 Rol. Abr. Extinguishment, 9.36. waife, ftray, wreck, leet, &c. Nor things 1.1. Sury v.Pigot, Popb. 172. per Dodderidge which are part of the profits of the land and J. 3 Bulff. 340. S. Č. Noy 84. S.C. or a payable by such person only who has the gutter carried through an adjoining tene- land, if they commence upon any personal ment, 11 H.7.25. or a watercourse rule respect, and not in respect of the land, and ning over the adjoining lands. Sury v. Pigot, so that the person only is charged, and not Popb. 166. Latch 153. S.C. 3 Bulfi. 340. the land, as annuities, tithes, proxies &c. S.C. though that is also said to be because Dav. 5,6.

any

WHALLEY

any species of property, corporeal or incorporeal, which could 1799 pass by the will of T. Adderley under the word “ appurtenances” fuppofing that word to be sufficient to carry it; that not being ftated as a way of necessity it could not be raised by operation of Tompson. law: and not being given by express words the devifee could not take it as a new grant.

Williams Serjt. contrà (being called upon by the Court, who inclined against the plea in bar, to state the grounds on which he meant to defend it). The Court will not on a general demurrer, take notice that this right of way in T. Adderley is informally pleaded viz. by way of prescription. The averment in substance amounts to this; that T. Adderley for a long time previous to the devise used a way over the locus in quo, to the close devised, as an eafement and appurtenance to the latter. By the devise therefore of “ Ley field and Ox Meadow with their and every of their appurtenances” the way in question may well pass; the word " appurtenances” being clearly fufficient to carry a right of way. Plowd. 170. Suppose a man being possessed of two clofes with a causeway leading over one into the other, alienate the latter; after which the alienee use and enjoy the causeway for forty years; would he not have obtained a good right of way ? Such a user would be sufficient evidence to support an action on the case by the alienee, for any interruption of that right. Now in this case the devisor died in 1757; the devisee for life entered and enjoyed the way till his death, upon which the remainderman entered and has enjoyed it from that time to this. Then is it consistent to say, that the Defendant might maintain an action for the interruption of this way, and yet that he cannot use it without being subject to an action?

Eyre Ch. J. There can be no doubt that the word “appurtenances” may convey an existing right of way. But from the moment that the possession of two closes is united in one person, all subordinate rights and easements are extinguished. The only point therefore that could possibly be made in this case is, that the ancient right which existed while the possession was distinct was merely suspended, and may revive again. If it be stated, that a man and his ancestors have been in possession of two adjoining closes, and a prescription be then set up for a way over one to the other, that prescription will be felo de fe.-Ifindeed the fields were let to different tenants, and from time immemorial a causeway had been built over one field to the other, by which the tenants had [ 276 ]

B B.4

passed

1799.

WHALLEY

TOMPSON.

passed and repassed, this in user and in fact would be a road, but
there would be no right to a road in point of law, for no right
could exist in the owner independent of the fee-fimple. If an
alienation of one of the closes was to take place, and the alienee
were afterwards allowed to use the causeway, a right might pof-
fibly grow out of such user to him; but that is not the case on
this record, and unless the claim of these Defendants can be put
in some legal form it will not avail them. Circumstances thrown
into the record, which might poflibly be sufficient to support an
action on the case, will not necessarily be an answer to an action
of trespass. I admitted, during the argument, that the word “ap-
purtenances” would carry any easement or legal right. Upon that
it was observed, that if the road in question had been described
in the devise it would have passed : and that observation was
followed up by a question, Whether the word “ appurtenances”
would not carry any easement or right that would pass by a par-
ticular description? To which I answer, that it's operation must
be confined to an old existing right, and that if the right of way
had passed in this instance it must have passed as a new ease-
ment (a). Had the devise been “ with the way now used” it
would certainly have been a devise of the close A. with an ease-
ment newly created. The word “ appurtenances” in this will
had nothing to operate upon.
Per Curiam,

Judgment for the Plaintiff.

(a) A way to a mill having been extin- were aligned to one and the land to the guiihed by unity of possession in 7. S., he other: held that the way was revived: tadied; whereupon partition was made be- men videtur that it is a new way. Bre. tween his daughters; the mill and way Abr. Extinguisement, pl. 15.

with an infant

a renewal to

Feb. gihi.

Ex parte Grace. If a person

ONE

Ne Harrison being possessed of a beneficial lease under the jointly interested

trustees of a charity, died leaving his widow administratrix of in a leafe, obtain his effects. By his death Mrs. Harrison became entitled to the lease himself only,

jointly with E. T. Harrison, her son by the deceased, and then an

infant. Soon afterwards Mrs. Harrison married W. Grace, who as proxe beneficial

, her husband having taken possession of the above-mentioned lease to have acted as and title deeds, on the approaching expiration of the lease (and trustee, and the infant may claim his share of the benefit ; but if it do not prove beneficial he must take it upon himself.

and the leale

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during the infancy of E. T. Harrison) treated with the trustees for a renewal of it to himfelf only, and in his own name; this he accordingly obtained. W. Grace having afterwards become a bankrupt, his assignees took possession of the lease and were proceeding to sell it for the benefit of the estate, when E. T. Harrison having attained the age of twenty-one, claimed his proportion of the money arising from the sale of the lease. This matter having been referred to arbitration, an award was made in favour of E. T. Harrison.

Shepherd Serjt. on a former day obtained a rule to fhew cause why this award should not be set aside, and now contended, that no trust resulted to E. T. Harrison by operation of law, but that the lease which W. Grace had obtained must be considered as his sole property, since there was no covenant for renewal in the original lease. He urged that W. Grace by ftipulation with the truftees had been obliged to lay out money on the estate without being able to ascertain whether E. T. Harrison would assent to it, and that the principle of this award would enable an infant in such a case to claim a benefit if the lease proved to be beneficial, and if otherwise to refuse his concurrence and throw the whole burden on the trustee.

Sed per EYRE Ch.J. These arguments might have weight if it were now to be decided for the first time whether a person renewing a lease in which he is partly interested, and in which another person (that person being an infant) is also partly interefted, shall or shall not be considered a trustee. The point has been decided at least forty times. Grace took the lease at his own peril; if it had not turned out beneficial he must have sustained the loss, but as it is a beneficial lease it must be for the benefit of the trust. This is the peculiar privilege of the unprotected fituation of an infant. In the present case it has clearly proved a beneficial lease, or this application would not have been made to the Court. As to any sums which may have been paid for the renewal of the leafe, or laid out in confequence of it, E. 1. Harrifon must contribute his due proportion before he can claim any advantage, and as the fund is in the hands of Grace he

may

do himself justice. The point is perfectly familiar; the trust arises by implication of law, and is not within the statute of Frauds. If Grace thinks himself aggrieved he may apply to a court of equity, which is more competent to discuss this question; but to me it appears that the award is both equitable and juit, and not to be controverted,

Shepherd

1799.

Ex parte

Shepherd then added, that the assignees only wished to take the opinion of the Court, and would be perfectly satisfied. Per Curiam,

Rule discharged. Le Blanc Serjt. in support of the award.

GRACE.

Feb. IIth.

bill of particulars

ance.

KITCHEN V. BLANCHARD. canhef demand a 11/ARSHALL Serjt. this day supported a rule for setting aside

an interlocutory judgment, by shewing the following suptill after appear- pofed irregularity, viz. The Defendant before appearance de

manded a biil of particulars under a Judge's order; previous to the expiration of which order the Plaintiff figned judgment for want of a plea. He contended, that a Defendant need not appear till he has actually obtained the particular; since the particular when obtained may afford a reason for not proceeding in the action, if the demand appear to be just.

The Court being of opinion that the Defendant has no right to demand a bill of particulars till he has appeared,

Discharged the rule.

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the theriff for

Feb. rith. PAGE v. Sir John Eamer Knight, and Another. The action on HIS was an action on the case by the Plaintiff, who had made the case against

cognizance as bailiff of one Alexander Blair Efq. in an action taking insuf- of replevin, against the Defendants as sheriff of Middlesex, for replerin ought to having taken infufficient pledges. be brought by Plea. General issue. the person mak.

This cause was tried before Buller J. at the Westminster fittings ing cognizance where there is after last Trinity Term, when it was objected that the action no avowant on the record.

would not lie in the name of the person making cognizance, but ought to have been brought in the name of the landlord. The learned Judge however observing, that the objection was on the record, and might be the subject of a motion in arreft of judgment: the cause proceeded, and a verdict was found for the Plaintiff. Damages £120.

Accordingly a rule nisi for arresting the judgment having been obtained in last term,

Shepherd

13

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