PARKE, [ *69] charged. The material facts are as follows: More than sixty WARBURTON years before, and till within thirty years before the commencement of the action, one Sudell was seised in fee of the plaintiff's farm. During the same period he had an estate for life. in the land over which the common was claimed, save that in 1822 he joined in a *conveyance to make a tenant to the præcipe for the purpose of suffering a recovery, in order to be able, in conjunction with the remainderman, to grant a mortgage for a term of 1,500 years. So that, so far as this conveyance operated, Sudell's estate ceased from 1822. But no recovery ever was suffered, and Sudell continued possessed until within thirty years before the action, when he became bankrupt, and all his property was sold, and all community of title between the plaintiff's land and that over which he claimed common, ceased. This common was claimed by prescription, by enjoyment as of right for sixty years, and by enjoyment as of right for thirty years. The claim by prescription failed. at the trial; as to the other claims, the jury found there had been an enjoyment as of right, but the state of the title was not ascertained at the trial, and the question was reserved, the plaintiff to be considered to have established his case if the title was such that in law he could have enjoyed as of right. We are of opinion the title was such that, in point of law, there could not have been an enjoyment as of right. There was no unity of seisin to extinguish an easement or prevent its existence, nor was there any unity of actual possession to prevent an enjoyment as of right. Nor, as to the sixty years' claim, is it enough to show that the owner of the servient tenement was only tenant for life, for the Prescription Act, section 7, shows that the fee may be bound by an enjoyment as of right during the term of a tenancy for life. But in this case, the lessor of the tenants who occupied the dominant tenement and enjoyed the common, was tenant for life of, and occupier of the common. It is manifest then that all their rights were derived from him, and as he could not have an enjoyment as of right against himself within the meaning of the statute, so neither could his tenants. For suppose there *had been no right of common attached to the dominant tenement, he could have granted it; suppose there had been, he could have withheld it; and supposing he merely let the farm with its appurtenances or all benefits usually had therewith, not knowing that that included common, still, if common was included, that would have been a grant of it by him. Whatever the tenants enjoyed then, they enjoyed by the grant of their landlord, the occupier and tenant for life of the [70] PARKE. WARBURTON Common; and this, we are of opinion, is not an enjoyment as V. of right within the statute. It is true that the proviso in section 1, "unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing," supposes there may be an enjoyment as of right though by consent or agreement; but that applies to cases where the title to the two tenements is such that the enjoyment could be as of right within the statute, not to where it necessarily cannot be. The right must be as of right against the land, not against the individual, and it is clear that in this case the question must have been, what did Sudell grant or demise to his tenants? It may be said that if this is so, a lessor of the dominant tenement, taking a week's tenancy of the servient, would lose all the servitudes. That is not so; he would only lose the statutory mode of establishing them, and he would only lose that when it could be said, as here, that, at the time of his granting the lease, he could grant the servitude, and even if this were otherwise, the case would only be the same as it is where there is a unity of possession during any part of the statutory periods. [*71] These considerations dispose of the sixty years' claim, as to which the rule nisi was refused. But it is said that there is a difference as to the thirty years' claim on account of the estate of the tenant to the præcipe. But in the first *place, if that estate was only for life, as was more commonly the case, its duration must be excluded from the thirty years by section 7, and then the time of Sudell's life estate is within the period of thirty years. But in truth, even if the estate of the tenant to the præcipe was nominally a fee, it does not seem to us to make any difference. It was a matter of form; there never was any entry, and Sudell remained in possession with the same rights as before, and his tenants still took by his grant; and indeed, as he could before his conveyance to the tenant to the præcipe have granted a right of common for the term of his life, it seems to us that even if Sudell had actually granted away his life estate, the enjoyment by such a tenant would not have been as of right, even after Sudell had ceased to have any interest, as such enjoyment would still have been under the personal grant of Sudell. The same considerations therefore apply to the thirty years' claim as to the sixty; and the plaintiff fails as to each. Rule discharged. PERKINS v. THE NATIONAL ASSURANCE AND INVESTMENT ASSOCIATION (1). (2 H. & N. 71-73; S. C. 26 L. J. Ex. 182; 3 Jur. N. S. 137; 29 L. T. O. S. 65; 5 W. R. 470.) Where a Judge's order was made for payment of debt and costs, which were demanded immediately after taxation, and not being paid, the plaintiff on the same day signed judgment: Held, that the judgment was irregular. In this case the following Judge's order was made by consent: "I do order that all further proceedings in this cause be stayed on payment of 58l. 16s. 11d. debt, together with costs to be taxed, and that in default of payment of the said debt and costs, or any part thereof respectively as aforesaid, the plaintiff shall be at liberty to sign final judgment, and issue execution for the whole amount remaining unpaid at the time of such default, with the costs of judgment and execution," &c. The costs were taxed at 6l. 18s. 4d., and immediately after the application was made, the plaintiff's attorney demanded of the clerk of the defendants' attorney, who attended the taxation, the amount of debt and costs, which not being paid, the plaintiff's attorney, on the same day, signed judgment and gave notice of taxing the costs of the judgment on the following day. On that day the clerk of the defendants' attorney attended before the Master, and offered the plaintiff's attorney a cheque for 65l. 15s. 3d., which was refused, and the costs were taxed and execution levied. A summons was then taken out, calling on the plaintiff's attorney to show cause why the judgment and all subsequent proceedings should not be set aside for irregularity, on the ground that it was signed before the plaintiff was entitled to sign the same. The summons was heard before COLERIDGE, J., who made an order accordingly. Quain now moved for a rule to show cause why the order The judgment was regular. In Arch. Prac., vol. 2, p. 914, 9th ed., it is said, "If the debt and costs be not paid according to the terms of the order, judgment may be signed and execution issued." There is no rule of practice which entitles the defendant to any time for payment: he is bound to have the money ready when the taxation is completed. (MARTIN, B.: A reasonable time ought to be allowed for the attorney to communicate with his client. BRAMWELL, B.: If no time for communication with the client is necessary, the plaintiff's attorney might always sign judgment, because he might send a clerk with authority to tax the costs, but (1) Smith v. Smith (1874) L. R. 9 Ex. 121, 43 L. J. Ex. 86. 1857. April 16. [ 71 ] [72] PERKINS NATIONAL ASSURANCE with no authority to receive the money; therefore, in some cases, time must be allowed.) ASSOCIATION. By the terms of the order the plaintiff is entitled to sign judgment "in default of payment of the debt and costs respectively." *There is a default in payment if the debt and costs are not paid immediately the costs are taxed. [ *73 ] 1857. April 24. [73] [ *7+ ] (BRAMWELL, B.: The Master's office is not the proper place to pay and receive money.) POLLOCK, C. B.: Without laying down any rule as to what would, under all circumstances, be a reasonable time, we are all of opinion that in this case the judgment was signed too soon. It is not reasonable to expect that an attorney's clerk, who goes to the Master's office to superintend the taxation of costs, should bring with him a sum of money, however large the amount, to pay the debt and costs, for the plaintiff would not be bound to take a cheque. We decide nothing more than that in this case the judgment. was irregular. MARTIN, B., and BRAMWELL, B., concurred. Rule refused. AMBROSE AND ANOTHER . COOK (1). (2 H. & N. 73-78; S. C. 26 L. J. Ex. 278; 5 W. R. 533.) The defendant mortgaged to B. certain premises as a security for money lent, and B. obtained a judgment against the defendant for the principal and interest. The mortgage debt was afterwards assigned to the plaintiff in trust. The defendant took the benefit of the Insolvent Act, 1 & 2 Vict. c. 110, and the mortgage debt and judgment were inserted in his schedule. The defendant, in order to get rid of the judgment, afterwards agreed with the plaintiffs to pay a part of the principal and interest due on the mortgage, and to join with a surety in a bond for payment of the remainder by instalments. The money having been paid and the bond given, satisfaction of the judgment was entered up. The plaintiffs sued the defendant on the bond, and the jury found that in making the agreement the defendant's intention was to purchase the plaintiffs' interest in the mortgaged premises and get rid of the judgment: Held, that the transaction was not a new contract or security for payment of a debt, in respect of which the defendant had been discharged, within the meaning of the 91st section of the Insolvent Act (1). DECLARATION on a bond in the sum of 1,600l. Breach: nonpayment. Pleas. First: that by an order of adjudication made by the Court for the Relief of Insolvent Debtors in England, according to the statute made and passed &c. (1 & 2 Vict. *c. 110), defendant was duly discharged of and from the said cause of action, and the said order remains in force. (1) The 91st section of the Judgments Act, 1838 (1 & 2 Vict. c. 110) at the date of this case called the Insolvent Act) was repealed by 32 & 33 Secondly that by an order of adjudication made by the Court for the Relief of Insolvent Debtors in England according to the said statute, the defendant was duly discharged of and from a certain debt, to wit, a debt due from him to one F. Beevor, and the same order remains in force; and the defendant became and was thereby entitled to the benefit of the said Act in respect of the said debt; and the said bond in the declaration mentioned. was afterwards made and given upon a new contract, or as a security for the payment of the said debt. Replication to first plea. That the defendant was not by the said order in that plea mentioned discharged according to the said statute of or from the said cause of action. To the second plea: that the defendant was not by the said order in that plea mentioned discharged according to the said statute of or from the said debt in the second plea mentioned, nor was the said bond made or given upon a new contract or as a security for payment of the said last-mentioned debt. Issues thereon. At the trial before Bramwell, B., at the Middlesex sittings in last Hilary Term the following facts appeared In the year 1846, the defendant who was a builder, borrowed of F. Beevor the sum of 1,000l., and as a security mortgaged to him certain premises. The principal and interest not having been paid, F. Beevor obtained a judgment against the defendant for 1,500l., which was duly registered. The mortgage debt was afterwards assigned to the plaintiffs in trust. In the year 1848 the defendant took the benefit of the Insolvent Act, on which occasion the mortgage debt and judgment were inserted in his schedule. The defendant, in order to get rid of the judgment, entered into an agreement with the plaintiffs to pay 2001., and the interest due *on the mortgage debt, and to join with a surety in the bond, on which this action is brought, for payment of the residue by instalments. money having been paid and the bond given, satisfaction of the judgment was entered on the roll. The It was submitted, on behalf of the defendant, that the bond. was a new security in respect of the debt from which he had been discharged, and was therefore void by the 1 & 2 Vict. c. 110, s. 91 (1). It was contended, on the part of the plaintiff, that the transaction was merely a purchase of the mortgage and judgment. The learned Judge left the question to the jury, and they found as a fact that the defendant's intention was to purchase the plaintiffs' interest in the mortgaged premises, and get rid of the judgment. A verdict was thereupon entered for the plaintiffs *for the amount due, leave being reserved to the defendant to move to enter a verdict for him. (1) Repealed by 32 & 33 Vict. c. 83, s. 20, AMBROSE r. Соок. [75] [ *76 ] |