Buszard and Others, Assignees of Jones and Another, Bankrupts, against Capel and Another
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1828 |
| Date | 24 May 1828 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 996
IN THE COURT OF KING'S BENCH.
S. C. 2 Man. & Ry. 197; 6 L. J. K. B. O. S. 267: in Exchequer Chamber, 6 Bing. 150; 3 Moo. & P. 480; 3 Y. & J. 344. Referred to, Cuthbert v. Robinson, 1882, 51 L. J. Ch. 241.
996 997 BUSZARD V. CAPEL 8 B. & C. Ut [141] buszard AND others, Assignees of Jones and Another, Bankrupts, against capel and another. Wednesday, May 14th, 1828. It was stated in a special verdict, that by an indenture A. demised to B., all that wharf next the river Thames, described by abutments, together with all ways, paths, passages, easements, profits, commodities, and appurtenances whatsoever to the said wharf belonging; and that by the indenture the exclusive use of the land of the river Thames opposite to and in front of the wharf, between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but that the land itself between high and low water mark was not demised : Held, that the meaning of this finding either was, that the land was demised as appurtenant to the wharf, and then it would be a finding that one piece of ground was appurtenant to another, which in law could not be (a); or, that the mere use of the land passed by the indenture, and that was a mere privilege or easement, out of which rent could not issue, and consequently, that the lessor could not distrain, for rent in arrear, barges, the property of B., lying in the space between high and low water mark, and attached to the wharf by ropes. [S. C. 2 Man. & Ey. 197 ; 6 L. J. K. B. 0. S. 267 : in Exchequer Chamber, 6 Bing. 150 ; 3 Moo. & P.'480; 3 Y. & J. 344. Eeferred to, Cuthbert v. Robinson, 1882, 51 L. J. Ch. 241.] Trover for two barges; first count on the possession of the bankrupt, second count on the possession of the assignees. Plea, not guilty. At the trial before Lord Tenterden C.J. at the London sittings after Trinity term 1827, the jury found a verdict of not guilty on the first count; and on the second a special verdict, stating, as to the grievances in that count mentioned, that, at the time of making the distress thereinafter mentioned, W. E. Jones and GL Jones had become bankrupts, and the plaintiffs had been chosen and appointed their assignees; that the plaintiffs, as such assignees, before and at the time of the making of the distress thereinafter mentioned, were lawfully possessed, as of their property as such assignees, of the barges thereinafter mentioned to have been taken and distrained by the defendants; and that by an indenture dated the 9th of March 1816, and made before W. E. Jones and G. Jones, or either of them, became bankrupts, between one T. Brown of the one part, and the bankrupts of the other part, Brown demised, leased, &c. to the bankrupts all that wharf, ground, and premises next the river Thames, and also [142] all that capital brick built warehouse of three floors erected and built thereon, abutting north on the river Thames, east on premises in the occupation of T. Flockton, south on the street cartway and common highway leading from Pickle Herring Stairs to Horsley Down Stairs, and west on the Five Footway or Little Wharf for landing goods, and certain other premises in the indenture more particularly mentioned, together with free liberty for them the bankrupts, their executors, &e. during that demise, to land and load goods-, &c. in common with the rest of the tenants of Brown, at the said Five Footway or Little Wharf fronting the river Thames, together with all cellars, ways, paths, passages, lights, easements, profits, commodities, and appurtenances whatsoever to the said wharf, ground, warehouse, and premises, or any of them, belonging or appertaining; habendum, the same premises, with their and every of their appurtenances, unto the bankrupts, their executors,. &c., from the 23d March then past for the term of thirteen years, at the yearly rent of 5551., by equal quarterly payments...
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