time of his decease, was possessed of and entitled to the residue of a then current term of 999 years, created by an indenture of lease, dated the 15th January A.D. 1663, as well of and in the said closes in the declaration mentioned as of and in a certain other farm, buildings, land and premises adjoining to the said closes of the plaintiff, and hereinafter called the adjoining tenements: and the defendant says that the said testator James Pearson, in his lifetime, before and at the time of making the said will, and thence until and at the time of his death, was entitled to and had and used a right of way from and out of a certain highway towards, unto and into the said close called The Great Ing, and back again, from and out of the close called the The Great Ing, towards, unto and into the said highway, for himself and his tenants, occupiers of the said several tenements so bequeathed to the said Abraham and John Pearson as hereafter mentioned, and for his and their servants on foot, and with cattle, carts and carriages, every year, at all times of the year, for all the residue and remainder then to come of the said term of 999 years, for the convenient occupation and enjoyment of the said closes in the declaration mentioned. And the defendant further says that, at the time of the making of the will herein mentioned, and thence until and at the time of the death of the said James Pearson, there was no way for cattle or carriages from any highway towards and to the said adjoining tenements without passing over the said closes in the declaration mentioned, or some or one of them, and that the said testator, in his lifetime, before and at the time when he made his will, and thence until and at the time of his death, was in the habit of using, as the way to and from the said adjoining tenements, the said way from and out of the said highway towards, unto and into the said close called The Great Ing, and from the said place where the said way so entered the said close called The Great Ing, a way through, over and along the said close called The Great Ing towards, unto, into, through and over the said closes called The Fold and Back of House Field, towards, unto and into the said adjoining tenements, and thence by the same route back again to the place where the said first mentioned way joined the said close called The Great Ing, and from thence towards, unto and into the said highway: and the said James Pearson, being so possessed and entitled as aforesaid, before the 1st January, 1838, made his last will and testament in writing, whereby, amongst other things, he bequeathed to his son Abraham, as soon as he should attain the age of twenty-one years, and to his &c., the said adjoining tenements, with a right to the way so used by the testator as aforesaid, for and during all the residue of the said term of 999 years, subject to a moiety of the rent payable thereout under the said indenture of lease; and the said testator also by his said will bequeathed unto his son John, as soon as he should attain the age of twenty-eight years, and to his &c., the said closes in the declaration mentioned, for and during all the residue of the said term of 999 years, subject to the other moiety of the said rent. And the said testator, by his said last will, appointed J. Mortimer and J. Robertshaw joint executors of his said will; and afterwards, to wit on the 28th March, 1826, the said testator being then still so possessed and entitled as aforesaid, died, without having revoked or otherwise altered his said will" (here followed an averment of proof of the will, as in the 1861. PEARSON V. SPENCER. 1861. PEARSON V. SPENCER. previous plea), "which said executors afterwards, and Issue on all the pleas. The case was tried, before Keating J., at the York Spring Assizes in 1861, when a verdict was given for the plaintiff on all the issues, leave being reserved to the defendant to move to enter a verdict on the eighth and ninth pleas. Bliss, in Easter Term, obtained a rule accordingly, and also for a new trial. This rule was argued at the present Sittings, on the 26th June; before WIGHTMAN and BLACKBURN JJ., CROMPTON J. being present part of the time. Mellish shewed cause, and Bliss and Quain were heard in support of the rule. The essential facts in the case, as well as the arguments of counsel, fully appear in the judgment of the Court. The following books were cited during the argument; Gale on Easements, pp. 48, 71, 73, 343-4; 2 Rol. Abr. 60, Graunts Z., pl. 17; Jorden v. Atwood (a); Beaudeley v. Brook (b); Oldfield's Case (c); Packer v. Welsted (d), Morris v. Edgington (e); Holmes v. Goring (f); Barlow v. Rhodes (g); James v. Plant, in error (h); Pheysey v. Vicary (i); Pinnington v. Galland (k); Proctor v. Hodgson (1); Lovell v. Smith (m); Worthington v. Gimson (n). Cur. adv. vult. The judgment of the Court was now delivered by BLACKBURN J. In this case the question at the trial was, whether the defendant had a right of way over the locus in quo, which he claimed in different manners. The eighth plea claimed the way on the ground that James Pearson, who was possessed of the locus in quo and also of the defendant's premises thereto adjoining, bequeathed the latter to Abraham Pearson, and the (a) Owen, 121. (g) 1 Cr. & M. 439. (b) Cro. Jac. 189. (f) 2 Bing. 76. (h) 4 A. & E. 749. 1861. PEARSON V. SPENCER. (i) 16 M. & W. 484. (1) 10 Exch. 824. 828. (k) 9 Exch. 1. (m) 3 C. B N. S 120 (n) 29 L. J. Q. B. 116; 6 Jurist N. S 1053. 1861. PEARSON V. SPENCER. locus in quo and other tenements to John Pearson; that the only access to the premises bequeathed to Abraham was over the premises bequeathed to John: and, no way being bequeathed in terms in the will, the executors of James and John Pearson set out the way claimed as the way to Abraham's premises. The ninth plea claimed the way as, in legal effect, bequeathed in the will of James Pearson. The verdict passed for the plaintiff on all the issues. Leave was reserved to enter a verdict for the defendant on the eighth and ninth pleas, on the undisputed facts, and the findings of the jury. Mr. Bliss obtained a rule to enter the verdict pursuant to the leave reserved, and also for a new trial on the ground of misdirection, and that the verdict was against evidence. We do not think that any misdirection was made out, nor that the verdict ought to be disturbed as against the evidence; but as we think that the defendant is entitled to have the verdict entered for him on the ninth plea, though not on the eighth, it is unnecessary to state the facts bearing on the other grounds in the rule. It appeared in evidence on the trial that the plaintiff's farm, including the locus in quo, and the defendant's farm were contiguous. They formerly formed one farm called Upper Isle, which belonged to James Pearson, from whom both the plaintiff and the defendant claimed title, who was possessed of it for a term of 999 years. In 1825 one Feathers occupied, under James Pearson, the farm-house and buildings, and seven fields, forming part of Upper Isle, and which now form the defendant's farm; the rest of Upper Isle, which now forms the plaintiff's farm, James Pearson retained in his own occupation. The fields occupied by Feathers were sur |