Cooke v Blake
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1847 |
| Date | 03 July 1847 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 93
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 17 L J Ex 370
[220] COOKS v. BLAKE. July 3, 1847.-To trespass for breaking and entering the plaintiff's close, the defendant pleaded,-1st, the user of a right of way for twenty years; 2ndly, a user of the way for forty years. .Replication to the former plea, that the corporation of L., being seised in fee of the locus in quo, by indenture of , feoffment demised it to H. for three lives and twenty-one years ; that the corporation delivered seisin to H., who became and was seised of the said close during the period of twenty years in the said plea mentioned, and the said term so demised was existing in full force, and not expired, surrendered, or otherwise become void. The replication to the other plea stated, in similar terms, the demise of the locus in quo by the corporation of L. to H., and then alleged that H., being so seised of the locus in quo, by indenture between C. of the first part, H. of the second part, and M. & W. of the third part, granted to M. & W. a right of way over the locus in quo. Rejoinder to replication to first plea, that the sair] term so demised was not existing during the period of twenty years j in that plea mentioned, rnodo et forma. Rejoinder to replication to second plea, j that H. [did nob grant to M. it W. the right of way, modo ct forma. At the I trial, it Appeared that the corporation of L., being seised in fee of the locus in ; quo, byiiudenture of the 17th February, 1800, demised it to H. for three lives and twenty-one years. By indenture of the 23rd July, 1803, after reciting the above indenture, H. assigned to C. the demised premises for securing payment of £1200, lent by C. to H. By indenture of the 9th February, 1801:, after reciting the demise to H. by the corporation, the assignment by H. to C., and also reciting that H. had agreed to sell part of the land to M. and W. for a sum out of which the sum due from H. should be paid to C.; C., at the request of H., bargained, sold, assigned, and transferred, and H. granted, bargained, sold, assigned, and transferred to M. and W, part of the demised premises, together with the right of way in question. In 1812, H. died, having made his will, whereby, after bequeathing his estates to his wife for life, he devised the same, after her death, to J. and M., in mariner following, "upon trust to pay and apply the rents, issues, arid profits of the same to and for the life and benefit of my daughter Mary, and her assigns, during her life, and independent of her present or any future ihusband; and from and after the decease of my said daughter, I give, devise, and bequeath my real and leasehold estates as aforesaid unto and equally 94 COOKE V BLAKE I EX 221 among all and every the children of my said daughtei Mary, share and share alike, as tenants in common , and if the said Maiy shall die without leaving lawful issue her surviving, and I give &c the same to my grand-daughter Ann " In 1816, the wife of H died, and, by indenture of the 11th December, 1817, the corporation of L assigned to the trustees the reveision in fee-simple of the locus in quo -Held, first, that the plaintiff was entitled to a verdict on the rejoinder to the replication to the first plea, since the trustees under the will of H took only an estate during the life of the testator's daughtei, and therefore the lease for lues did not merge in the giant of the leversion-Secondly, that the rejoinder, "ue granta pas," only put in issue the fact of a grant, and that the seisin of H was admitted [S C 17 L J Ex 370] Trespass The declaration stated, that the defendant, on &e, broke and entered a certain close and yard of the plaintiff, situate in Liverpool &c that is to say, a certain yard or close adjoining and belonging to a certain dwelling-house of the plaintiff, and communicating by a gateway with a street called Wood-street, in Liverpool aforesaid, and called and known as the Common-yard , and then, to wit, at the said several days and times, passed and repassed into, out of, over, and along the said close or yard, and obstructed and encumbeied the said close and yaid, and then ejected and expelled the plaintiff from the use, occupation, and possession of the said close and yard, &c [221] The defendant pleaded (with other pleas), thirdly, that fot the full period of twenty years next before the commencement of this suit, the respective occuprers for the time being of a certain messuage, situate in the said parish of Liverpool &c , and adjoining the said close and yard, in which &c , actually had used and enjoyed, and were respectively accustomed to use and enjoy, as of right and without interruption, and still as of right and without interruption ought to have, use, and enjoy, a certain way for themselves and then servants to go, return, pass, and repass on foot from the said messuage towards, into, through, over,'and along the said close and yaid, in which &c , and from thence through the said gateway unto and into the said stteet, called Wood-stieet, in the said declaration mentioned, and so from thence back again from the said street, through the said gateway, towards, and unto, and into, and through the said close and yaid, in which &c , unto and into the said messuage at all times of the year, at his and their free will and pleasure, as to the said messuage belonging and appertaining And the defendant says, that during pait of the said period of twenty years, to wit, at the said seveial times, &c, he was the occuprei of the said messuage, and being such occupier, and having occasion, and being so entitled, to use the said way, did at the said times when &o , pass arid tepass in, by, through, and along the said way from the said messuage, rnto, through, over, and along the said close and yard in which &o, through the said gateway, towaids and utito and into the said street, and so from thence back again, in, by, through, and along the said way,, through the said gateway, unto arid into the said messuage, using the said way there for the purpose and upon the occasion aforesaid, as he might for the cause aforesaid, and in so doing the defendant, at the said times when &c , a little obstructed the said close and yard &c , qiuB siint eadem Verification The defendant pleaded also, fourthly, a similai plea of a user of the way for forty years [222] Replication to third plea That before the commencement of the said period of twenty years in the said third plea mentioned, and before any user of the said supposed right of way in that plea mentioned, and before and at the time of the making of the indenture next hereinafter mentioned, the mayor, bailiffs, and burgesses of the borough of Livetpool &c weie seised in their demesne aa of fee of and in the said close and yard in which &c , arid being so seised, hetetofore, and before any user of the said supposed right of way in the Bind third plea mentioned, to wit, on the 17th February, ad 1800, by a certain indenture then made between the said mayor, bailiffs, and butgesses of the one part, and Thomas Herbeit of the other part, (which said indenture having been lost by lapse of time, the defendant cannot produce the same to the Couit here), the said mayor, bailiffs, and burgesses did demise, grant, let, and to farm let unto the sard T Herbert, his executors, &c (amongst and with other hereditaments and piemises), the aaul close and yaid in which &c , to have and 1 EX. 323. COOKE V. BLAKE 95 to hold the same, with the appurtenances, unto the said T. Herbert, his executors, &g.j for the term of the several and natural life and lives of Mary Herbert, (daughter of the said T. Herbert), John Cukit, and John Andley Jeo, and the life of the survivor of them, and for the further term of twenty-one years next after such survivor's decease, under the yearly rent and subject to the covenants and provisoes in the said indenture contained ; and the said mayor, bailiff's, and burgesses then, to wit, on &c., delivered seisin of the said close and yard in which &c., to the said T. Herbert; by virtue of which said demise the said T. Herbert then became and was seised and possessed of the said close and yard in which &c., with the appurtenances, for the said term so to him thereof granted as aforesaid ; that for and during the whole of the said period of twenty years in the said third plea mentioned, and at the said several times in the said declaration and third plea respectively mentioned, the said J. A. Jee, one of theE lives men-[223]-tioned in the said lease, was living, and the said term so demised and granted by the said mayor, bailiffs, and burgesses of and in the said close and yard in which &c., was existing, in full force, and undetermined, and not expired, surrendered, forfeited, or otherwise become void. Verification. The replication to the fourth plea stated the grant of the locus in quo by the mayor, bailiffs, and burgesses to T. Herbert, as in the above' replication, and proceeded thus : that T. Herbert, being so seised of the said close and yard in which, &c., and during the continuance of the said demise, to wit, on the 9th of...
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