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been their intention to limit it. “As to the grant to him
Woop. “ If so they would have stated it in the grant. And it is not necessary to state in the replication, that there is no necessity for a sough in the woody ground; because it is alledged in the plea, which makes it not necessary to new assign; and it is expressly claimed, because he has occasion to use it not only for draining the woody ground but other lands, for the purpose of raising coal froin both lands. This grant, however, does not warrant the use of the sough for the purpose of raising the coal from both lauds; and no extrinsic circumstances can be taken into consideration."
HOLROYT, in reply; " in the case in Roll the grant is only to lay a pipe to drain the waler from the house ;
* Luter 111. i Mol. 10. Lord Raym. 755.
but it does not state whether it is to be 'a continuing drain or for how long a time it is to be." It would be a very strange construction of such a grant, that when there is a grant for a sum of motey to a man in fee, to make a drain, it is not to be a continuing grant; for it would be, a burthen and not a privilege, to make the drain, if it should not be a grant of a liberty to repair it, without which it would be absolutely useless. In the case in Roll it is said, that the grant of the pipe for an indefinite time, will be for the period of the grantee's estate in the land, which shews that'extrinsic circumstances may be taken into consideration; this is very different from a way. It is impossible to work the main, without a continuing drain or steam engines. This, therefore, is necessary to ihe grant, and the abuttals and bounderies of the songh are not to limit the extent of it but to shew its course."
Curia adv. vult. And now the judgment of the court was delivered to the following effect, by
Lord ELLENBOROUGH, C. J. after stating the pleadings; “ On the part of the defendant it has been contended, that under the grant by Robert Stansfield to Jeremy Marshall, his heirs and assigns the defendant, as the assignee of Marshall, has a right to make the sough pits as being necessary to keep the sough in repair, as incident to the grant of the sough, and as it is necessary to open the sough pits as often as the repair of the sough requires. For the plaintiff it has been contended that the liberty of making and opening a sough pit, has been granted but for once, and not as often as the sough requires repair ; and in addition to this it has been contended that the sough itself is not to be continued, or rather the use of the pit for the repair of the sough, except as far as it is necessary to diain Jeremy Marshall's woody ground. In the grant
HODGSON tersus FILIU.
it is not particularly mentioned, for what time it is to
JUDGMENT for the DEFENDANT.
Tous against POWELL.-June 17th.
and pluries, and, before service, but after the issuing of the last
TOMS teraus POWELL.
IN an action for goods sold and delivered, tried be.
fore Ileath, J. at the last assizes for Surrey, the defendant admitted 6). 10s. lid. to be due, and the question was, whether it was not paid before the suit commenced. The plaintiff sued out bis first writ 228 June, 1805, his secoud writ, which was an alias, 22d June, and an alias pluries, August 26th,returnable Michaelmas term. After the last writ was issued, the defendant paid the debt, without the costs, and no mention was made of the costs, the writ not baring been then served. There was a verdict for the plaintif with nominal damages and liberty to enter a nonsuit, if the court should be of opinion with the defendant. The first writ to found the alias and pluries had never been returned. No writ was served till the alias pluries, and the debt was paid 11 days previous to the service of it.
Bowen obtained a rule to shew cause why a nonsuit should not be entered,and cited Harris q.t. v.Hoolford, to shew the Becessity of proving the return as, well as the issuing of the first writ, as in the case of replying to save the statute of limitations. He contended also, chat, nothing being said about the costs, at the time of paying the debt, it amounted to a waiver
* 6 Term Rep. 617.
of the costs. The rule was granted only on the first. ground; for the court said that the latter point was pot a defence to the action though it might have induced the court to have staid the proceedings.
Toms versus POWELL.
Lawes, for the plaintiff, shewed cause and contended“ that the pluries was issued before the payment of the money, and was either to be considered as the commencement of the suit, or else the irregularity of the want of returning the first writ was waived by appearance.”
: Lawrence, J.' “ Should not the defendant have moved to set aside the proceedings,for irregularity? The cases requiring the latitat to be returned, have becn where it is necessary to shew a suit commenced by the latitat itself; but that goes to shew the commencement of the action is by the alias; for, if not, it could not shew that the action is not in time."
· GROSE, J. “ The defendant should have moved to stay proceedings.”
· LE BLANC. “ The motion when it was made was founded on the case of Harris v. Woolford, but that case was, where it was necessary to connect the latitat with the alias in order to shew the suit cominenced by the latilat; of course it goes to shew that it is commenced by the pluries, if the latitat is not returned, and that was before payment of the debt.”
The King against the Justices of STAFFORDSHIRE.
The statute 9 Geo. I. c. 7, s. 8, is peremptory upon the justices to me hear an appeal, and it cannot be dismissed on the ground, that no. 1. c. 2, s.o. lice has not been ghen to the respondents.