1835 132 ER 133 - Bower V Hill

2 BING. (N. Q. US. BOWER V.
HILL
The object of the testator in this case was to leave a loophole for his brother
Zachary or his issue, in case it should turn out he had not perished at sea; a case
within the bounds of possibility, as people have been heard of after they have been
missing for fifty years. If Richard were to take the fee, he as well as Thomas might
defeat the testator's intention by transferring the estate to one who was not a Pearce;
and such a construction of the will would also exclude the heir at law, for Thomas was
the heir.
Wright, in reply, distinguished the cases relied on for the Defendants, as turning
on the intention of the testator in the particular case to be collected from all the
accompanying circumstances, and if no intention appeared that the tenant for life
should take under the ultimate limitation, at least no intention to exclude him was
expressed or could be inferred; whereas, here it [338] was plain, from the express devise
for life, accompanied with powers of appointment and leasing, and from the whole
context and object of the will, that the testator meant to exclude Thomas Pearce
from the ultimate limitation; by next and nearest of kin, he meant the nearest next
after Thomas. There was nothing in the will to shew that Zachary had ever been
thought of.
The following certificate was delivered in Michaelmas term:-
This case has been argued before us by counsel, and we have considered the same,
and assuming Zachary Pearce, the testator's brother, to have died without issue in the
testator's lifetime, we think, under the circumstances above stated, Thomas Pearce
took an estate in fee under the ultimate limitation contained in the will of the testator.
In consequence of our answer to the first question, it becomes unnecessary to answer
the second. N. C. TINDAL. S. GASELEE.
J. A. PARK. J. VAUGHAN.
[339] BOWER v. HILL AND ANOTHER. November 24, 1835.

In case for obstructing Plaintiff's right of way to his close by a navigable watercourse,
it appeared that the Plaintiff's close, which abutted on the watercourse, had been
detached, about five years before the action, from certain premises called the King's
Head Inn. The only evidence of user was by persons frequenting the King's Head
Inn in boats, before the Plaintiff's close was detached: Held, not evidence to go to
a jury to support the right claimed by the Plaintiff.
This was an action upon the case for obstruction of a right of way claimed by the
Plaintiff, "by reason of his possession of a close of land, from the said close of the
Plaintiff unto and along a certain stream or watercourse, unto and into a certain
public navigable river, called the river Nen, and so back again, for himself and his
servants to go, return, pass, and repass in boats every year, and at all times of the
year at his and their free will and pleasure."
At the trial before Littledale J., it appeared that the close, in respect of which the
Plaintiff claimed the right of way, abutted on the stream or watercourse in question,
and had formerly constituted parcel of one entire property called the King's Head
Inn or yard; but about five years ago the occupier of the King's Head Inn had put
up a pair of gates at the bottom of his yard, and had thereby separated the yard from
the stream or watercourse; leaving the space of ground between the yard and the
stream in possession of the Plaintiff. There had been no user of the stream for the
last sixteen years; but before that period it appeared that boats went to the King's
Head Inn and back for various purposes as occasion required; that coals were carried
thither; corn, for the purpose of being deposited in granaries in the yard; bricks,
tiles, and other materials for the repair of the house.
The learned Judge directed a nonsuit on two grounds; one, that the right of way
had been proved to belong to the King's Head Inn and yard as one entire subject;
the other, that no user of the way had been proved either by the owner of the King's
Head Inn or his servants.
(340] Adams Serjt., pursuant to leave given at the trial, moved to set aside the
nonsuit. He contended that it was for the jury to say whether the original grant of
a right of way along the watercourse was made to the owner of the land, or to the
owner of the house, and it was in ease of the grantor that the right should belong only
BOWER V. HILL 2BING. (N. C.) M4.
to the party who owned the land by the side of the cut. [Tindal. The evidence of
user is confined to the house.] But the owner of the house was at the same time the
owner of the land by the side of the cut. And if the grant were to the owner of the
house and land as one entite property, the separate occupier of every portion bf that
property was entitled to the benefit of the grant.
(Upon the second ground of nonsuit, the propriety of which was also contested, the
Court pronounced no opinion.)
A rule nisi having been granted,
Hill and Miller shewed cause. First, the evidence, as far as it goes, is evidence
of a right attached to the King's Head Inn only. There is no proof of a right
attached to the frontage of the watercourse. The Plaintiff's close was detached from
the King's Head Inn at a recent period, and there can be no apportionment of the
original right. Such an apportionment might render the grant much more extensive
than the grantor intended. From the user it must be inferred that the grant, if any,
was only to the owner or occupier of the King's Head Inn. In Ballard v. Dyson
(1 Taunt. 286), Lawrence J. says, "The question is, what was the grant in this case ?
That is to be collected from the user; for it is to be presumed that the use has been
according to the grant."
Adams, in support of the rule, contended that on both points there was at least
evidence to go to a jury, and that therefore there ought to be a new trial.
Cur. adv. vult.
[341] TINDAL C. J. This was an action upon the case for obstruction of a right
of way, claimed by the Plaintiff "by reason of his possession of a close of land, from
the said close of the Plaintiff, unto and along a certain stream or watercourse, unto
and into a certain public navigable river called the river Nen, and so back again, for
himself and his servants to go, return, pass, and repass in boats every year, and at
all times of the year, at his and their free will and pleasure." At the trial before
Mr. J. Littledale, he directed a nonsuit to be entered upon two grounds, one of which
was, that upon the evidence the right was found to belong to the King's Head Inn and
yard, as one entire subject, and not to the frontage occupied by the Plaintiff; and as
we are satisfied that the nonsuit ought to be entered upon this objection, it becomes
unnecessary to advert to any other.
The evidence on the trial of user and enjoyment of the right of passage by boats
and barges was referable to the King's Head Inn and yard, and to those premises only.
There was no other subject matter to which the user could possibly apply. The proof
was, that boats went up to the King's Head yard and back for various purposes, as
occasion required; that coals were carried there; corn for the purpose of being
deposited in the granaries in the yard; bricks, tiles, and other materials for the
repair of the house. From such evidence it might fairly be left to the jury to presume
a grant from the owner of the dyke or stream, to the owner of the King's Head Inn
and yard, that the occupier of those premises might pass and repass from the same to
the river Nen, and back again, by themselves and their servants, in boats and barges,
for the more convenient use and enjoyment of the same premises; and if such grant
once existed, there was nothing in the evidence at the trial to shew that it has ever
been extinguished or [342] released; but for any thing that appears to the contrary,
the occupier of the inn and yard has still the full right to the enjoyment of the ease-
ment created by such grant. It appeared indeed on the trial, that for the last five
years the occupier of the King's Head Inn had put up a pair of gates at the bottom of
his yard, and had thereby separated the yard from the dyke or stream, during which
time the space of ground between the yard and the stream had been in the possession
of the Plaintiff; and it was upon this evidence that the Plaintiff rested his claim to
the right of passing along the dyke; contending, that the right to the easement
attached to each and every part of the land which formed any part of the King's Head
yard; and that as he the Plaintiff had the possession of the frontage of the ground
adjoining to the dyke or stream, so he had the right of passage which was the subject
of the grant. We think, however, such a construction of the grant would lead to
very unreasonable consequences. The grant itself, if presumed to have ever existed,
is still in full force. Nothing has been done by the grantee to release it. There is
only a temporary discontinuance of the enjoyment, or at most a temporary suspension
of the right, not any extinguishment of it. The occupier of the King's Head Inn and
yard may resume the user. at any time, by taking any part of the frontage into his
2 BING. (N. 0.) 343. CLARK V. GILBERT
own possession, so as to have access to the dyke; and the consequence would be, if
the Plaintiff were held to be entitled to the right of passage, that two different persons
would be entitled to use it for themselves and their servants with boats and barges,
or indeed as many different persons as possessed any share of the frontage. This
would be an unreasonable construction against the grantor, who may have been con-
tented to grant the right to the occupier of the King's Head Inn and yard, from his
knowledge of the degree of user which would follow from the grant when so [343J
limited. Independently, however, of this consideration, we think upon the broad
ground, that if this grant were produced in evidence the Plaintiff could not bring him-
self within the description of the grantee, he not being the occupier of the King's
Head Inn and yard, there was no evidence whatever for the jury in support of his
claim, and consequently that the nonsuit is right.
Rule discharged.
CLARK AND ANOTHER, Assignees of Scrivener, a Bankrupt, v. GILBERT.

Nov. 24, 1835.
[S. C. 2 Scott, 520; 1 Hodges, 347; 5 L. J. C. P. 61.]
Defendant held a certain deed of lease on which he had a lien for 3001. as attorney of
S.: a commission of bankrupt was issued against S. in December 1829; Defendant
acted as attorney under that commission; and in 1831, after notice of a petition to
supersede it, he joined with the assignee under the commission in a sale of the lease,
and out of the proceeds was paid the 3001. due to him from S.-The commission
of bankrupt having been superseded in 1832 for want of a sufficient petitioning
creditor's debt, and a new commission having issued, Held, that Defendant was
liable to refund the 3001. in an action for money had and received to the use of the
assignee under the second commission, and also money received in 1831 for rent,
&c. accruing to S.
This was an action of assumpsit, brought to recover certain sums of money alleged
to have been had and received by the Defendant to the use of Scrivener before his
bankruptcy, and to the use of the Plaintiffs as his assignees since the bankruptcy.
A general verdict was found for the Plaintiffs, damages 3311. 16s., subject to the
opinion of the Court on the following case:-
By indenture of lease, bearing date the 17th of November 1828, certain premises
in Ratcliffe Highway, in the county of Middlesex, were demised by Abraham Gole
and Thomas Gole to Scrivener the bankrupt, for the term of eighty-one years, at a
rent of 1001. At the time of issuing the commission against Scrivener the [344] bank-
rupt, he was indebted to the Defendant, an attorney, in 2341. or thereabouts, for
monies advanced to him by the Defendant, and for professional business done; and
the Defendant had possession of the lease as Scrivener's attorney.
Whilst the Defendant was in possession of the lease, namely, on the 5th of
December 1829, Scrivener, by indenture bearing date on that day, mortgaged by way
of demise part of the said premises to his father Abraham Scrivener, to secure 6001.
and interest.
On the 30th of December 1829, a commission of bankrupt was issued against the
mortgagor, the said Scrivener, upon the petition of one William Stevens, who was
afterwards appointed sole assignee of the estate and effects of the bankrupt; and an
assignment thereof was made to him accordingly. The Defendant was Stevens's
attorney, both as petitioning creditor and assignee under that commission, which
commission was afterwards superseded as hereinafter mentioned.
On the 26th of March 1830, a petition to the Great Seal was presented by Augustus
White, a creditor, to supersede the commission of bankrupt, on the ground of the
insufficiency of the petitioning creditor's debt; upon which petition the Defendant
appeared as solicitor for the petitioning creditor and assignee, W. Stephens; and after
some time an order was made upon that petition to supersede the commission.
After notice of the petition, and whilst the same was pending, Stevens, as assignee,
with the concurrence of the Defendant, caused the interest of the bankrupt in the
premises comprised in the said lease, subject to the mortgage, to be sold by auction;
and one George Pound became the purchaser at the price of 3501. At the time of the

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2 BING. (N. Q. US. BOWER V.

[339] BOWER v. HILL AND ANOTHER. November 24, 1835.

CLARK AND ANOTHER, Assignees of Scrivener, a Bankrupt, v. GILBERT.

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