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1806.

HODGSON

tersus FIELD.

been their intention to limit it. “As to the grant to him
and his heirs, that might be intended to provide either
for the case of the grantee dying before the sough is
made, or for a case equally possible, if the sough
should by accident get out of repair during the time of
its continuance for a partial and limited purpose. This
by the terms of the deed, being granted merely in and
through a certain piece of woody land, is like the grant
of a way from A. to B. over a certain close, which
canuot be extended; for if a man have a way from A.
to B.and he purchase land adjoining : he cannot use the
way as a way to the adjoining land, although he goes
by B. to the adjoining close." Howel v. King. *
. LAWRENCE, J.“ Might not the colliery be in some
other part of Marshall's land; when he had got the
right of making the sough through the woody ground,
might he not have carried it on, thence, to his col-
liery ?"

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.

1906.

HODGSON

verans FIELD.

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

1806.

HODGSON tersus FILIU.

it is not particularly mentioned, for what time it is to
be continued ; but, as there is a grant of the sough,
without regard to the ground under which it might be
granted, the question is whether, under the terms of
the grant, the grantee had a right to do that wbich
was necessary to repair the object of the grant so long
as it continues,or being once made, it shouldcontinue no
longer than it remains unimpaired by time or accident.
Such latter construction would defeat the views of one
intendingto open a colliery. It has been observed, that
it would bave been mentioned, if it had been intended
to give a liberty of repairing the sough in perpetuity ;
but this does not furnish any argument against the
right of repair. The purpose for which the liberty
was given is expressed for the more safe and easy car-
rying up of the tail of the sough. That purpose once
answered should it be continued afterwards? The sough
may be continued, it is said, but not so easily without
the sough pits, and if so, he is not entitled to make
these pils. Il is indeed reasonable that he should not
make other pits unless absolutely necessary; there
is therefore, nothing in this part of the grant which
relates to the making the two little sough pits, nor in
the covenant to repair the fences which furnishes an
argument upon the question, whether Marshall had, as
incident to the grant, any right to repairthe sough. The
covenantis, for the benefit ofthe grantor,in other respects
not connected with the sough. There is therefore no-
thing in the deed to narrow the grant, and the question
Fesolves itself into whether the right of repair is incident
to the grant:" Upon this question his lordsbip thought
that the cases cited for the defendant were conclusive,
and therefore observing that it was admitted that all
the coals were not got out of the woody land.”

JUDGMENT for the DEFENDANT.
NO. XXXVI. N, S.

4 B

136,

Practice.
Latitat. Costs.

Tous against POWELL.-June 17th.
Where plaintiff issued a latitat which was not returned, then alias

and pluries, and, before service, but after the issuing of the last
writ, the defendant paid the debt, but not the costs; held that the
plaintiff might proceed to recover costs, the action being con-
menced, either by the latital, or the pluries, &c. before paymezi.

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.

1806.

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.

Stat. 90

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.

Appeal.

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