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"been their intention to limit it. As to the grant to him 1806. and his heirs, that might be intended to provide either Jj0d050!i 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 cannot be extended; for if a man have a way from A. to B.and he purchase land adjoiuing :he cannot use the way as a way to the adjoining land, although lie goes by B. to the adjoining close." Howelx. 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 colliery i"

Woon. "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 vroody ground i because it is all edged in the plea, which makes it not necessary to new assign; audit is expressly claimed, because he has occasion to use it not only for draining the woody ground but oilier lands, for the purpose of raising coal from borh lands. This grant, however, does not warrant the use of the sough for the purpose of raising die coal from both lands; and no extrinsic circumstance* can be taken into consideration."

'HoLnovn,in reply; " in tlie rnoe in Jloll the grant is •nly to lay a pipe to drain the water from the house j

* Litter HI. 1 MuJ. 10. Lord Raym. 7.1.

i

1305.' but it does not state whether it is to be a continuing Hono*>!t drain or for how long a time it is to be. It would be

tw«s a very strange construction of such a grant, that when there is a grant for a sum of mdfley to a man in fee, to make adrain, 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 lioll 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 maybe 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 the grant, and the abuttals and bounderies of the sough 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 Ellenboi:oi!gh, C. J. after stating the pleadings; " On the part of the defendant it has been contended, that under the grant by Robert Stunsfield to J'eremy Marsha//, his heirs and assigns the defendant, as the assignee of Marshall, has a right to make the sough piu a.s 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 iiberly of making and opening a sough pit, has been granted but for once, and not as often as the sough recjuiies 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 lor the repair of the sough, except as far as it is necessary to diain Jere-my Manha/i's woody ground. In the graut 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 ©f the grant, the grantee had a right to do that whicti 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 have been mentioned, if it had been intended to give a liberty of repairing the sough in perpetuity j but this does not furnish any argument against the right of repair. The purpose for which the liberty w as given is expressed for the more safe and easy carrying 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 pits. It 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 torepairthe sough. The covenants, for the benefit ofthe grantor,in otherrespects not connected with the sough. 'There is therefore nothing in the deed to narrow the grant, and the question resolves itself intowhetherthe right of repair is incident to the grant?" Upon this question his lordship thought that the cases cited for the defendant were conclusive, and therefore observing that it was admitted that alt the coal* were not got out of the woody land."

Judgment foi the Hefenoant.

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Toms against Powell.—Jtuie 17th.

Where plaintiff issued a latitat which teas not relumed, then alias and pluries, and, before service, but after the issuing of the last tcril, the defendant paid Die debt, but not the costs; held that the plaintiff might proceed to recover costs, the action, being commenced, either by the latitat, or the pluries, Sfc. before payment.

JN an action for goods sold and delivered, tried be.

fore Heath, J. at the last assizes for Surrey, the defendant admitted 61. 10s. lid. to be due, and the question was, whether it was not paid before the suit commenced. The plaintiff'sued out his first writ 22d June, 1805, his second writ, which was an alias, 22d June, and an alias pluries, August fiGth,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 having been then served. There was a verdict for the plaintiff with nominal damages and liberty to enter a nonsuit, if the court should be of opinion with the dtj'endaut. The first writ to found the alias and pluries had never been returned. No writ was served till the alias plutics, and the debt was paid 11 days previous to the service of it.

Bowf.n obtained a rule to shew cause why a nonsuit should not be entered,and cited Harris q.t. v./fiuolford,* to shew the necessity of proving the return as, well as the issuing of the (irst writ, as in the case of replying to save the statute of limitations. He contended also, that, nothing being said about the costs, at the time of paying the debt, it amounted to a waiver

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of the costs. The rule was granted only on tlie first, ground; for the court said that the latter point was not a defence to the action though it might have induced the court to have staid the proceedings.

Lawes, for the plaintiff", shewed cause and contended" that the plurics 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 been 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 commenced by the latitat; of course it goes to shew that it is commenced by the pluries, if the latitat is not returned, and that wds 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 hear an appeal, and it cannot be dismissed on the ground, that no- I. c lice has not been given to the respondents. ^Pl

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