purposes as the same was enjoyed by the said Thomas Answood, junior, as hereinbefore mentioned; but in the month of October, 1861, and whilst the said James Dennis was in the occupation of the said dwelling-house, outhouse and garden, as tenant thereof to the defendant, the plaintiff erected and fastened a door in the yard in such a position and manner as to prevent any access by the occupiers of the said dwelling-house, outhouse and garden to the said yard or to the said well and pump, and the defendant broke open the said door, and broke and entered the said yard, and took and carried away water from the said well and pump, which are the trespasses complained of in the pleadings in this action, so far as they relate to the present case, at the times and under the circumstances, and for the purpose and in exercise of the rights set forth in the pleadings in this action, as far as they relate to the present case.

Upon this evidence, the learned Judge, before whom this cause was tried, directed the jury to find, and the jury did find, a verdict for the defendant; but the learned Judge reserved leave to the plaintiff to move the Court of Queen's Bench to set aside the said verdict and to enter a verdict for the plaintiff, with 408. damages, instead thereof, if the said Court should be of opinion that the right to use the said pump did not pass under the devise to the said Clementina Polden contained in the said last will and testament of the said Rachel Polden Bonnel, as herein before mentioned.

A rule nisi having been obtained accordingly, the Court of Queen's Bench made such rule absolute (1).

Kay, for the plaintiff in error, the defendant below. The question turns on the construction of the will, and the effect to be given to the words, "as now in the occupation of Thomas Answood, junior." These words are evidently to have a special meaning from the variation in language used by the testatrix from the expressions in the other devises in the same will, namely, "now occupied" in the one devise, and "in my own occupation" in the other. In Bodenham v. Pritchard (2) the

(1) Polden v. Bastard, 32 Law J. Rep. (N.S.) Q.B. 372; B.c. 4 Best & S. 258.

(2) 1 B. & C. 350.

words, "as now enjoyed by me," applied to a house and lands, called D, were held to pass other fields, which belonged to another estate, which had been purchased by the testator, before the date of his will, but taken into occupation by him as part of D. In that case the testator owned and occupied the D. estate, with the mansion-house thereupon, till his death, and bought the adjoining estate twenty-two years before his death, and, for twenty years, took into occupation, along with his D. estate, three pieces of land belonging to the newly-purchased estate. The rest of the newlypurchased estate was leased out to other tenants; and it was held, that the three pieces of land passed by a devise of his mansion-house, called D, "together with all lands thereunto belonging, as now enjoyed by me." In Press v. Parker (3), under a devise to A. of the messuage "wherein he now lives," and to B. of a messuage "now in the occupation of E," a coal-cellar within the boundary of the messuage, in the occupation of E, which had always been used and enjoyed with the messuage in which A. lived, was held to pass to A. In Doe d. Clements v. Collins (4), the testator, who was a master bargeman, and tenant for years of a house, garden, stables, and coalpen, bequeathed "the house I live in, and garden, to H. C"; and it was holden, the stables and coal-pen passed, though the coal-p -pen was situated on the other side from the house of a road running near it, and was used as a place to keep coals, not sold, out of his barges. Mr. Justice Ashurst there "The testator's intention appears to says, have been to give, by the bequest of his house, everything which was in his occupation, as proper and convenient for the occupation of the house." Further, the right. to go to this pump to get water passed as an easement of necessity. In Staple v. Heydon (5) it is agreed that by the grant of a house, to which there is a way of necessity without more, the grantee shall have the way as well as if it were specially mentioned in the grant. In Pyer v. Carter (6) the right to the use of a drain through an adjoining house passed by a conveyance of a house

(3) 2 Bing. 456.

(4) 2 Term Rep. 498. (5) 6 Mod. 1.

'6) 1 Hurl. & N. 916.

without more, because it was necessary and given appendant thereto. Such easement need not be indispensably necessary; it is sufficient if it be an ordinary convenience and apparent. In Ewart v. Cochrane (7) it was held, that where two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words, and it was doubted whether the usual words even were essentially necessary. In Hall v. Lund (8) an easement which was intermittent passed; and it was held, that where premises have certain ordinary and common conveniences, such conveniences pass by the grant of the premises.

The Solicitor General and H. T. Cole, for the plaintiff above, were not heard.

ERLE, C.J.-I am of opinion that the judgment of the Court below should be affirmed. The testatrix, at the time of making her will, was in possession of two adjoining cottages, and devised them to two separate devisees. For some time before the date of the will, the occupier of one of the cottages used to go to a pump on the premises of the other cottage. By her will, she devised the cottage, "as now in the occupation of Thomas Answood, junior," to Clementina Polden. It is said that that cottage is the dominant tenement; and that the devise carries with it the right to go on the adjoining premises as the servient. The question is, whether the words "as now in the occupation" make it a dominant tenement, and carry with them such right. I think they do not. If they had amounted to such words of description as " as enjoyed by Thomas Answood, with all ways, &c.," such general words might have carried the easement; but our judgment must be given upon the particular words of this will. There is a distinction between such rights, as rights of way, which may be used from time to time and discontinued, and between rights of necessity and continuous enjoyment, such as drains. The decisions go the length

(7) 4 Macq. Scotch App. Cas. 117.

(8) 1 H. & C. 676; s. c. 32 Law J. Rep. (N.s.) Exch. 113; 11 W. Rep. 271.

of saying that such easements as the latter would pass without particular words of description; but the easement now in question is only used from time to time, according to inclination-it may be every day, but it may also be from time to time, at intervals, and is not continuous or of necessity. The judgment of the Court below went upon that ground, and I found mine upon the same. In Bodenham v. Pritchard (2) the devise was of all lands "as now enjoyed by me"; and if, in the present case, there had been a devise of all lands as used or enjoyed by the testatrix, it would have been in point. That is a fact of description, and the jury are to ascertain to what lands the description applies. There is no such question here, for the pump is no part of the cottage. On the ground, therefore, that there was no such continuous or necessary easement as to pass by a devise of the cottage, under the words of the above will, I think the judgment should be affirmed.

1865. Nov. 20.

Judgment affirmed.

THE GUARDIANS OF THE POOR
OF THE HASTINGS POOR LAW
THE

UNION, appellants, v.

GUARDIANS OF THE POOR OF
THE PARISH OF ST. JAMES,
CLERKENWELL, MIDDLESEX,
respondents.

Poor-Settlement-Renting a Tenement -6 Geo. 4. c. 57.

A house was hired quarterly at a yearly rent of 251., to be paid on the 29th of September, 25th of December, 25th of March, and 24th of June; a quarter's notice to be given by either party:-Held, that this was a renting of a tenement for a whole year within the meaning of the 6 Geo. 4. c. 57, and that a pauper having occupied the same and paid rent for a year, gained a settlement, upon the authority of The King v. Herstmonceux.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 65.]

Commissioners of Turnpike Trust-Local Act, 9 Geo. 3. c. xxxii.—Paying off old Charge on Rates and Tolls Hereafter Borrow” — Sinking Fund-12 & 13 Vict. c. 87. s. 3.—13 & 14 Vict. c. 79. s. 4.

Certain Commissioners of a turnpikeroad and for other purposes, under a local act of parliament, were empowered to borrow sums of money for the purposes of the act, on the credit of certain rates, assessments and tolls, and did so borrow at interest at the rate of 51. per cent. per annum. Afterwards, by the 12 & 13 Vict. c. 87. s. 3, where such Commissioners should "hereafter borrow, charge or secure any sum or sums of money on the credit of the tolls arising on such road," they should, "out of the tolls of such road and in priority to all other payments thereout, except the interest of such monies as aforesaid,... set apart a sum of 51. per cent. per annum on the amount of money so borrowed, charged or secured." The Commissioners, with a view to get the money at a cheaper rate, by reason of the inducement of this sinking fund, called in the old securities and obtained the money at 41. per cent.:-Held, that they were not entitled to set apart the sinking fund under the 12 & 13 Vict. c. 87. s. 3, as the money raised to pay off the old charges was not "hereafter borrowed" within the meaning of that act.

Semble that the power to create a sinking fund under 12 & 13 Vict. c. 87. s. 3. was confined to cases where the money was borrowed on the credit of the tolls alone of a turnpike-road, and could not be extended to a case like the present, where the security consisted of rates, assessments and tollsBlackburn, J. dubitante.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 81.]

1865. Nov. 8.

THE QUEEN, on the prosecution of DODD

AND

SOUTHAN,

appellants, v. THE OVERSEERS OF BILSTON, respondents.

Poor-Rate Parochial Assessment Act (6 & 7 Will. 4. c. 96. s. 1.)-Local Act (10 & 11 Vict. c. xxx.)-Small Tenements -Usual Deductions-Composition.

The net annual value of hereditaments rated to the poor-rate is, by the Parochial Assessment Act, to be ascertained by the rent at which the same would let from year to year, "free of all the usual tenant's rates and taxes," &c. By a local act, the owners of small tenements were empowered to compound for the poor-rate in respect of such tenements by the payment of one-half of such rate only:-Held, that the deduction for usual tenant's rates and taxes must be made at the full sum allowed for other similar property not in composition, and not according to the sum actually paid by way of composition.

A voluntary payment, by a landlord, to waterworks of water-rent for the supply of water to a hereditament occupied by his tenant, and rateable to the poor, is not a tenant's rate, or an expense necessary to maintain the premises in a state to command their probable annual rent, within the meaning of the Parochial Assessment Act (6 & 7 Will. 4. c. 96. s. 1), and ought not to be deducted from the gross estimated rental of the premises, in order to ascertain their net annual value under that act.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 73.]

NEW SERIES, 35.-Q.B.

0

The 8 & 9 Vict. c. 20. s. 103. enacts that, if any person travel in any carriage of the company without having paid his fare, with intent to avoid payment thereof, or if any person having paid his fare for a certain distance, knowingly and wilfully proceed in any such carriage beyond such distance without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof, he shall forfeit, &c. A by-law was made by a railway company, under the powers of their special act and of the 8 & 9 Vict. c. 20. in the terms following: "No passenger will be allowed to enter any carriage used on the railway, or to travel upon the railway, without having first paid his fare and obtained a ticket. Each passenger on payment of his fare. . . will be furnished with a ticket, specifying the class of carriage and the distance for which, or places for travelling between which, the payment has been made, ... which ticket such passenger is to shew when ever required by the guard in charge of the train, or some other servant of the company, and which ticket such passenger is also to deliver up before leaving the company's premises, upon demand, to the guard, or other servant of the company authorized to collect tickets. Any passenger not producing his ticket as aforesaid, or not delivering up his ticket as aforesaid, will be required to pay the fare from the place whence the train originally started, and in default of payment thereof shall forfeit and pay a sum not exceeding 40s."

A passenger took at E. a return ticket from E. to S. and back. He travelled to S. and back again to E; but instead of getting out at E, travelled, without taking a fresh ticket, to N. When he got out at N. he shewed his return ticket to E, and offered to pay the full local fare from E. to N. The company's

Friendly Societies-18 & 19 Vict. c. 63. ss. 23, 24.-Money in Hands of an Officer of Society who executes an Assignment— Assignee-Complaint.

The Friendly Societies Act (18 & 19 Vict. c. 63. s. 24.) gives summary power to Justices to order an officer, a member of a friendly society, or his assignee, who by false representation or imposition may obtain possession of any monies, &c. of such society, or having the same in his possession, may withhold or misapply the same, or may wilfully apply any part of the same to purposes other than those expressed in the rules of such society, to deliver up such monies, &c. or repay the money applied improperly:

Held, that this section does not give the Justices power to make an order on an assignee for the benefit of the creditors of an officer of such society, for repayment out of his effects of a sum equal in amount to the balance of the society's monies in the hands of such officer at the time he made the assignment, such balance not consisting of specific monies, and the amount having come into the possession of the assignee solely in his representative character.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 99.]

Pleading Equitable Plea-Assignment by Plaintiff of Defendant's Debt before Action-Liability of Defendant to Assignee -Unconditional and Perpetual Injunction in Equity-Res Judicata.

To a declaration containing an indebitatus count for money awarded to be paid by the defendant to the plaintiff, the defendant pleaded, as an equitable plea to a certain sum, parcel of the money claimed in count, that before action the plaintiff assigned the said sum for a good consideration; that the assignees gave express notice thereof to the defendant and required him to pay the said sum; that the assignment was still in force, and the defendant remained liable to pay the said sum to the assignees; that the plaintiff was suing inequitably and in fraud of the assignment; that the action was not brought for the benefit or with the assent of the assignees, who still required the defendant to pay the sum to them; and that if the plaintiff recovered in this action the defendant would still be forced to pay the sum to the assignees: -Held, that the plea was good, since on these facts equity would grant an absolute, perpetual and unconditional injunction to the plaintiff not to sue for his own benefit, and if the plaintiff hereafter sued the defendant for the same debt for the benefit of

the assignees, or if circumstances revested the debt in him and he sued the defendant for his own benefit, this judgment could not be pleaded as res judicata, and would be no bar to either of such actions.

The declaration contained an indebitatus count for money awarded to be paid by the defendant to the plaintiff.

Plea, on equitable grounds, as to a certain sum, parcel of the money claimed, that after the accruing of the plaintiff's claim and before action, the plaintiff for a good and valuable consideration in that behalf assigned to certain persons trading under the name, style and firm of Messrs. F. Devas, Routledge & Co., the said sum, parcel, &c., to which this plea is pleaded; and the said persons then gave express notice to the defendant of the assignment, and they required the defendant to pay the said sum; and the assignment at the commencement of this suit remained and still remains in full force and unrevoked; and the defendant then remained and still remains liable to pay the same to the said persons; and this action is not brought in any manner or to any extent for the use or benefit of the said persons, or with their knowledge, privity or consent, but notwithstanding the same they have required and still require the defendant to pay the said sum to them; and in case the plaintiff recovers the same in this action