1805. versus BENNETT. egress, and regress, in and to the same; and also one LAMBERT close, formerly called the Mill Barton, but then called the Little Ground, and one other close called the Mill Garden, and also one seat, or room for a man and woman to sit in, within the church of Boyton aforesaid, and all ways, passages, and privileges to the aforesaid premises; belonging (except and always reserved out of the said lease or demise, unto the said Edmund Lambert, his heirs and assigns, all timber trees, germins, saplings, plants, and springs, likely to become timber, which during the term thereby granted should stand, grow, or be in or upon the said demised premises, or any part thereof, with free liberty of ingress, egress, and regress, to fell, cut down, root up, take, load, and carry away the said excepted trees; and also except all right of fishing in and upon the said demised premises, and every part thereof, and the sole and exclusive liberty of exercising and enjoying the same, and also except full and free liberty to and for the said Edmund Lambert, his heirs and assigns, and his and their servants and tenants, at all times, at his and their will and pleasure, to divert and turn the water, running or which should run, to or from the said mill, out of the usual course for the drowning, flooding, and watering all such meadows, as he or they should think proper, and to take and draw up and shut down all proper and necessary sluices and hatches for that purpose, without any let, denial, or interruption of or by him the said Sir William Peirce Ashe A'Court, his executors, administrators, or assigns. To have and to hold the said fulling-mill, mill-house, and all and singular other the premises thereinbefore mentioned, and thereby demised, and every part and parcel thereof, with the appurtenances (except as before excepted) unto the said Sir William Pierce Ashe A'Court, his executors, adminis-' trators, or assigns, from thenceforth for and during, and unto the full end and term of ninety-nine years 1805. LAMBERT versus next ensuing, fully to be complete and ended, if the said Lucy Lambert or Bridget Lambert, or either of them, should so long happen to live, upon trust, nevertheless for, and for the sole and only proper benefit BENNETT, and behoof of the said Lucy Lambert and her assigns, for and during so long of the said ninety-nine years as she should happen to live, and from and after her decease, upon trust for, and for the only proper benefit and behoof of the said Bridget Lambert and her assigns (in case she should happen to survive the said Lucy Lambert,) for and during so long time of the same term as should run out and expire during her natural life, and to and for no other trust, intent, or purpose whatsoever; yielding and paying therefore, yearly and every year during the said demised term, unto the said Edmund Lambert, his heirs or assigns, the yearly rent or sum of twenty shillings of lawful money of Great Britain, clear of all deductions and taxes whatsoever, on the tenth day of October, and the fifth day of April, by even and equal portions. On the same day a similar lease of the same date was executed between the same parties of another mill,called Sherrington Mill, The only variation between the two leases is, that the latter is at a rent of three pounds, instead of twenty shillings; and in the description of the premises the word mill-pond is used instead of the word watercourse. Edmund Lambert, the lessor died in March, 1802, without vacating either of the same leases, under the proviso therein, leaving the plaintiff, his heir at law, who thereupno became seised in fee of the reversion of the above mentioned demised premises; Lucy, his daughter, who had before married the defendant, John Bennett; and Bridget bis wife, surviving him, all of whom are now alive. Sir William A'Court entered and was possessed of the leasehold premises above mentioned, subject to the trusts above declared. A considerable part of 1805. LAMBERT versus BENETT. the profits of the mills above mentioned arises from what are called water-rents, which are payments made by the occupiers of meadows (not being te nants either of the plaintiff or defendant, or SirWilliam A'Court, under the lease) watered by permission from the leits of these mills, above the same, in consideration of their having such water. These meadows have been always watered by the same means, and the amount of the water-rent paid per acre has been always the same. Part of the water so let from Sherrington Mill does not, after the meadows are watered, come back into the mill-stream again. The plaintiff has in his own occupation, and in the occupation of his tenants, other meadows which they have always since Mr. Lambert's death, watered from these streams above the mills, whenever they chose, during the watering season, without making any payment or acknowledgment whatever. Edmund Lambert, the lessor, after granting the leases above mentioned, until his death, always received the water-rents to his own use. Wa ter rent accruing since Mr. Lambert's death, to the amount of the sum given by the verdict, have been paid by different occupiers of meadows, (not being tenants as aforesaid) to Ambrose Patient, as a stake holder; who paid them to the defendant, claiming them in right of Lucy his wife, upon his undertaking to pay them over to the plaintiff in case he should appear to be intitled to them. The persons who paid the waterrents so paid by them to Patient as aforesaid, had permission both from the plaintiff and the defendant, and Sir William A'Court his trustee to have the water for watering the meadows for which such water-rents were paid, The question for the opinion of the court is, whether the plaintiff is intitled to recover? If he is, the verdict is to stand; if not, a nonsuit, is to be entered. MOORE, A. for the plaintiff. "The question is, whether the plaintiff is to recover the water-rents, for watering all the meadows stated in the case; which depends upon the construction of the third branch of the exception in the lease, coupled with the other facts. This lease must be construed strictly against the lessor, though according to the intent of the parties; and it is not confined to the meadows that were in the lessor's own possession. It does not appear by the deed, whether the rent of the mill, as well as the water-rents of the meadows, was not paid to the lessor: it is then a case of strict construction between the heir at law, and the lessee of the ancestor. The profits of the fulling mill might have been a very sufficient provision, and it might not have been his intent to have given any thing more than the rent of the fulling mill." He cited Doe d. Dormer v. Parkhurst.* DAMPIER, contrà. "It was the intention of the lessor to have provided for his family by this arrangement, and to give a beneficial interest to the lessee. He had meadows of his own, and also water-rents to be received of other persons, who were tenants to him these water-rents are stated to be great part of the profits of the mill. Now the water must be at the controul of the miller, or else the exception will be destructive of the grant, for, during the time of watering the meadows, all the water must be taken away from the mill." THE COURT beld, that unless the exception went to destroy the matter of the grant, it was large enough to include the water-rents, and that the most that could be inferred from the case was, that the use of the water for watering the meadows would partially deprive the mill of the use of the water, or at the 1805. LAMBERT versus BENNETTY 1805. LAMBERT versus BENNETT. Award. Attachment. Condition. RANDALL versus RANDALL. 1 utmost would wholly deprive it of the use of the water for a part of the year. The exception therefore not being inconsistent with the grant, there was JUDGMENT for the PLAINTIFF, RANDALL against RANDALL. Where a submission to arbitration is of several specific things, so that the said award be made in writing by a certain day, or of the premises, or other words equivalent to a condition, the arbitrators must award, specifically, concerning the things so mentioned, without further notice, or the award is bad for the whole, and no attachment can be obtained for the non-performance of it, THIS was a rule to shew cause why an attachment should not issue for non-performance of an award; which was opposed upon a defect appearing on the face of the award. The agreement mentinoed in the condition of the bond of arbitration was, to arbitrate of and concerning all matters in difference, and also of and concerning the value to be paid for certain hope polls, &c. and also the rent to be paid by the said William Randall to the said James Randall, for the lands, secondly, hereinafter mentioned, together with the costs in the said action, so that the award should be made in writing ready to be delivered on or before the 12th day of May instant." In the award no notice was taken of the rent to be paid annually, mentioned in the condition of the bond of arbitration, which had been made a rule of court, and was referred to in the award. The parties had lands in gavelkind, which were wholly occupied by one of them only, and it was intended that the award should be made of the annual rent to be paid by the occupier to the other tenant, for the time which he held it. The arbitrators awarded general releases, and recited, that they had considereed all matters referred. COMYNS, in shewing cause against the rule, cited Roll'ş |