1799. WHALLEY V. TOMPSON. 1796 demised the faid clofes formerly called the Wood Close and Or Clofe and now called Little Ley field and Ox Meadow with all the rights members and appurtenances thereunto belonging to one Thomas Tompfon the elder, who thereupon entered into and became and still is poffeffed of the faid clofes formerly called the Wood Clofe and Or 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 aforefaid and being fo poffeffed thereof the faid Defendants as fervants of the faid Thomas Tompfon the elder and by his command at the faid feveral times when &c. paffed and repaffed on foot and with horfes mares geldings carts and other carriages from the faid King's common highway in the faid parish of Weddington unto into through over and along the faid close in which &c. to the faid 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 same way to the said common highway as occafion required using the faid way as an easement and appurtenance to the faid clofes formerly called the Wood Clofe and Ox Clofe and now called Little Ley field and Or Meadow as it was lawful for them to do for the cause aforefaid. And this &c. wherefore &c. General demurrer and joinder. Le Blanc Serjt. was this day to have argued in fupport 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 easement or appurtenance belonging to one close while he was feifed in fee of both, fince whatever right of way might have exifted while the clofes were feparate property was extinguished by the unity of seifin (a); that being extinguished therefore it did not exift as a right of way, eafement, appurtenance or (a) See this pofition fupported by feveral cafes collected in Vin. Abr. Extinguishment, (A. & C.) But it appears that there is a diftinction between rights which are of neceffity and those which are merely by way of easement; the former are not deftroyed by unity of feifin; as a way to church or market, 1 Rol. Abr. Extinguishment, 936. 1.1. Sury v.Pigot, Poph. 172. per Dodderidge J. 3 Bulft. 340. S. C. Noy 84. S. C. or a gutter carried through an adjoining tenement, 11 H.7.25. or a watercourse running over the adjoining lands, Sury v. Pigot, Popb. 166. Latch 153. S. C. 3 Bulf. 340. S. C. though that is also faid to be because it hath it's being not by prescription but ex jure naturæ, per Whitlock J. S. C. So things not iffuing out of lands as parts of the profits, but due in another refpect, though taken within the lands, are not extinguished by unity of poffeffion, Dav. 5, 6. as warren, 35 H.6, 55, 56. Dyer 327. franchises, waife, ftray, wreck, leet, &c. Nor things which are part of the profits of the land and payable by fuch perfon only who has the land, if they commence upon any perfonal respect, and not in refpect of the land, and fo that the perfon only is charged, and not the land, as annuities, tithes, proxies &c. Dav. 5,6. any any fpecies of property corporeal or incorporeal, which could pafs by the will of T. Adderley under the word "appurtenances" fuppofing that word to be fufficient to carry it; that not being ftated as a way of neceffity it could not be raised by operation of law and not being given by exprefs 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 ftate 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 prefcription. The averment in fubftance amounts to this; that T. Adderley for a long time previous to the devise used a way over the locus in quo, to the clofe devised, as an easement and appurtenance to the latter. By the devife therefore of "Ley field and Ox Meadow with their and every of their appurtenances" the way in queftion may well pafs; the word "appurtenances" being clearly fufficient to carry a right of way. Plowed. 170. Suppofe a man being poffeffed of two clofes with a causeway leading over one into the other, alienate the latter; after which the alienee ufe and enjoy the caufeway for forty years; would he not have obtained a good right of way? Such a ufer would be fufficient evidence to fupport an action on the cafe by the alienee, for any interruption of that right. Now in this cafe the devifor died in 1757; the devifee 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 confiftent to say, that the Defendant might maintain an action for the interruption of this way, and yet that he cannot use it without being fubject to an action? 1799. WHALLEY V. TOMPSON. EYRE Ch. J. There can be no doubt that the word " appurtenances" may convey an exifting right of way. But from the moment that the poffeffion of two clofes is united in one person, all fubordinate rights and easements are extinguished. The only point therefore that could poffibly be made in this cafe is, that the ancient right which exifted while the poffeffion was diftinct was merely fufpended, and may revive again. If it be ftated, that a man and his ancestors have been in poffeffion of two adjoining clofes, and a prescription be then set up for a way over one to the other, that prescription will be felo de fe.-If indeed 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] 1799. WHALLEY บ. TOMPSON. paffed and repaffed, this in ufer and in fact would be a road, but there would be no right to a road in point of law, for no right could exift in the owner independent of the fee-fimple. If an alienation of one of the clofes was to take place, and the alienee were afterwards allowed to ufe the caufeway, a right might poffibly grow out of fuch ufer to him; but that is not the cafe on this record, and unless the claim of thefe Defendants can be put in fome legal form it will not avail them. Circumftances thrown into the record, which might poffibly be fufficient to support an action on the cafe, will not neceffarily be an anfwer to an action of trefpafs. I admitted, during the argument, that the word “appurtenances" would carry any eafement or legal right. Upon that it was obferved, that if the road in queftion had been described in the devife it would have paffed: and that obfervation was followed up by a queftion, Whether the word "appurtenances" would not carry any easement or right that would pafs by a particular defcription? To which I anfwer, that it's operation must be confined to an old existing right, and that if the right of way had paffed in this inftance it must have paffed as a new easement (a). Had the devife been "with the way now ufed" it would certainly have been a devife of the close A. with an easement newly created. The word "appurtenances" in this will had nothing to operate upon. Per Curiam, (a) A way to a mill having been extinguithed by unity of poffeffion in 7. S., he died; whereupon partition was made between his daughters; the mill and way Judgment for the Plaintiff. were affigned to one and the land to the other: held that the way was revived: tamen videtur that it is a new way. Bro. Abr. Extinguifement, pl.15. Feb. 9th. If a jointly interefted with an infant in a leafe, obtain a renewal to himself only, and the leafe prove beneficial, he fhall be held to have acted as trustee, and the infant may claim Ex parte GRACE. ONE Harrifon being poffeffed of a bencficial leafe under the trustees of a charity, died leaving his widow adminiftratrix of his effects. By his death Mrs. Harrifon became entitled to the leafe jointly with E. T. Harrison, her fon by the deccafed, and then an infant. Soon afterwards Mrs. Harrison married W. Grace, who as her husband having taken poffeffion of the above-mentioned lease and title deeds, on the approaching expiration of the leafe (and his fhare of the benefit; but if it do not prove beneficial he must take it upon himself. during the infancy of E. T. Harrifon) treated with the trustees for a renewal of it to himself only, and in his own name; this he accordingly obtained. W. Grace having afterwards become a bankrupt, his affignees took poffeffion of the lease and were proceeding to fell it for the benefit of the eftate, when E. T. Harrifon having attained the age of twenty-one, claimed his proportion of the money arifing from the fale of the leafe. This matter having been referred to arbitration, an award was made in favour of E. T. Harrifon. Shepherd Serjt. on a former day obtained a rule to fhew caufe why this award fhould not be fet afide, and now contended, that no truft refulted to E. T. Harrifon by operation of law, but that the leafe which W. Grace had obtained must be confidered as his fole property, fince there was no covenant for renewal in the original leafe. He urged that W. Grace by ftipulation with the truftees had been obliged to lay out money on the eftate without being able to afcertain whether E. T. Harrifon would affent to it, and that the principle of this award would enable an infant in fuch a cafe to claim a benefit if the leafe proved to be beneficial, and if otherwise to refuse his concurrence and throw the whole burden on the trustee. Sed per EYRE Ch. J. Thefe 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 interefted, and in which another perfon (that person being an infant) is also partly interefted, fhall or fhall not be confidered a truftee. The point has been decided at leaft forty times. Grace took the lease at his own peril; if it had not turned out beneficial he must have sustained the lofs, but as it is a beneficial lease it must be for the benefit of the truft. This is the peculiar privilege of the unprotected fituation of an infant. In the prefent cafe it has clearly proved a beneficial leafe, or this application would not have been made to the Court. As to any fums which may have been paid for the renewal of the leafe, or laid out in confequence of it, E. 1. Harrifon muft contribute his due proportion before he can claim any advantage, and as the fund is in the hands of Grace he may do himfelf juftice. The point is perfectly familiar; the truft arifes by implication of law, and is not within the ftatute of Frauds. If Grace thinks himself aggrieved he may apply to a court of equity, which is more competent to difcufs this question; but to me it appears that the award is both equitable and juít, and not to be controverted. Shepherd 1799. Ex parte GRACE. 1799. Ex parte Shepherd then added, that the affignees only wished to take the opinion of the Court, and would be perfectly fatisfied. Rule discharged. Per Curiam, Le Blanc Serjt. in fupport of the award. Feb. 11th. A Defendant cannot demand a bill of particulars ance. KITCHEN V. BLANCHARD. FARSHALL Serjt. this day supported a rule for fetting afide an interlocutory judgment, by fhewing the following fuptill after appear- pofed irregularity, viz. The Defendant before appearance demanded a bill 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; fince the particular when obtained may afford a reafon for not proceeding in the action, if the demand appear to be juft. The Court being of opinion that the Defendant has no right to demand a bill of particulars till he has appeared, Difcharged the rule. Feb. 11th. The action on the cafe against the fheriff for PAGE v. Sir JOHN EAMER Knight, and Another. THIS HIS was an action on the cafe by the Plaintiff, who had made cognizance as bailiff of one Alexander Blair Efq. in an action of replevin, against the Defendants as sheriff of Middlesex, for ficient pledges in having taken infufficient pledges. taking infuf replevin ought to be brought by the perfon making cognizance where there is no avowant on the record. Plea. General iffue. This caufe was tried before Buller J. at the Weftminster fittings after laft Trinity Term, when it was objected that the action would not lie in the name of the perfon making cognizance, but ought to have been brought in the name of the landlord. The learned Judge however obferving, that the objection was on the record, and might be the fubject of a motion in arreft of judgment: the caufe proceeded, and a verdict was found for the Plaintiff. Damages £120. Accordingly a rule nifi for arrefting the judgment having been obtained in laft term, 13 Shepherd |