Web v. Paternoster [Palm. 71]. We see no reason to doubt the authority of that case, confirmed, as it since has been, by the case of Tayler v. Waters [7 Taunt. 374] in this court, and recognized as law in the judgment of Mr. Justice Bailey, in the case of Hewlins v. Shippam [5 B. & C. 221], in the Court of B. R.

We therefore think the rule for setting aside the award of the arbitrator must be made absolute.

CASE-The declaration stated that the plaintiff, before and at the time of the committing of the grievances, &c., was, and from thence had been, and still was, lawfully possessed of a certain messuage or dwelling-house, yard, and premises, with the appurtenances, situate and being in the county of Devon, to wit, in the borough and town of Crediton, in the said county, and of a certain thatched wall standing and being in and upon those premises; and by reason of such possession, during all that time, she, the plaintiff, for the necessary use and enjoyment of her said premises, ought to have had, and still of right ought to have, the use and benefit of a certain channel, drain, gutter, or sewer, leading and running, by and from the said messuage or dwellinghouse, over, across, along, and through the said yard of the plaintiff unto and into certain premises in the possession or occupation of the defendants there, near to the said premises of the plaintiff, by, through, and along which the said drain, &c. (stating the particular easement). And also, by reason of such possession as aforesaid, she, the plaintiff, was, during all the time aforesaid, entitled to the benefit, easement, privilege, and advantage of having and permitting the eaves and thatch of her said wall to extend and project a convenient space beyond and from the said wall over and upon the said premises so as aforesaid in the possession or occupation of the defendants, for the convenience and use of conveying and carrying off from her said wall and thatch thereof the rain which from time to time descended and fell thereupon. Yet the defendants, well knowing all the premises, but contriving, &c., whilst the plaintiff was so possessed, &c., as aforesaid, to wit, on, &c., wrongfully and injuriously shut, closed, stopped up, and obstructed the said drain, channel, gutter, or sewer, to wit, by and by means of divers large quantities of brick, &c., and the same so shut, closed, stopped up, and obstructed as aforesaid, kept and continued for a long space

of

time, to wit, from, &c. And thereby and from no other cause whatsoever, during all the time aforesaid, divers large quantities of the refuse and foul water, and other filth, arising and proceeding from the said messuage and premises of the plaintiff, have been and still were prevented and hindered from running, flowing, and passing off in their usual course, through and out of the said channel, drain, gutter, or sewer, in the manner aforesaid; and by reason thereof, not only divers noisome, noxious, offensive, and unwholesome smells, &c., during all the time aforesaid, have ascended, &c., into the said messuage, dwelling-house, and premises of the plaintiff, but also thereby the said premises, &c., of the plaintiff became and were greatly overflowed and wholly untenantable, and the plaintiff and her family thereby had been and were greatly annoyed, &c., in the occupation, possession, and enjoyment thereof. And the defendants furthermore, on the same day and year aforesaid, and on divers other days and times, &c., wrongfully, injuriously, without the leave, and against the will of the plaintiff, erected, put, and placed, close to the said wall of the plaintiff, divers large quantities of brick, mortar, stone, wood, and other materials, and divers erections and buildings; and the same respectively there kept and continued for a long space of time, to wit, &c., so near to the said wall and to the thatch thereof, that by reason thereof, and from no other cause whatever, the rain, which from time to time descended to and fell upon the thatch of the said wall, was wholly prevented from dripping and falling from the thatch thereof in manner aforesaid, as the same ought to have done; and in consequence thereof great quantities, to wit, ten perches of the said thatch, and of the covering and coping of the said wall, had respectively become and been greatly rotten, decayed, damaged, injured, and destroyed; and by reason thereof, not only the plaintiff, during all the time aforesaid, lost the use and advantage of the said wall, but also by means of the said thatch covering and coping of the said wall having been so damaged and destroyed as aforesaid, large quantities of rain and moisture have from time to time, during all the time aforesaid, fallen upon and penetrated into the said wall of the plaintiff, and the same has thereby been greatly injured and damnified, and has been rendered ruinous, insecure, and dilapidated; so that, by means of the several premises aforesaid, the plaintiff hath been, during all the time aforesaid, greatly inconvenienced, &c. Pleas. First, Not Guilty. Secondly. As to the part of the said declaration which relates to the said channel, drain, gutter, or sewer in the said declaration mentioned, the defendants say that the plaintiff ought not to have or maintain, &c., because, they say, that the surplus or foul water, or other filth, which from time to time arose, were collected and proceeded from the said messuage or premises of the plaintiff, were not, during all the time aforesaid, used and accustomed, nor of right ought to enter, flow, pass, and be carried away from and off the said premises of the plaintiff into the said premises of the defendants, in manner and form as the plaintiff hath in her said declara

tion in that behalf alleged; and of this the defendants put themselves upon the country. Thirdly, And as to that part of the said declaration which relates to the eaves and thatch of the said wall in the said declaration mentioned, the defendants say that the plaintiff ought not to have or maintain, &c., because they say that the plaintiff was not, during all the time aforesaid, entitled to the benefit, easement, privilege, and advantage of having and permitting the eaves and thatch of the said wall to extend and project a convenient space beyond and from the said wall over and upon the said premises so as aforesaid in the possession or occupation of the defendants, for the convenience and use of conveying and carrying off and from her said wall and the thatch thereof the rain which from time to time descended and fell thereupon, and of this the defendants also put themselves upon the country. Upon these pleas, issue was joined.

At the trial before Patteson, J., at the last assizes for the county of Devon, the following appeared to be the facts of the case:-Joseph Thomas, the father of the defendants, being seised in fee of the land and premises occupied by the defendants at the time of the alleged injury, purchased the adjoining premises occupied by the plaintiff at the time of the alleged injury, in which there was a term of 500 years. By his will, dated the 18th April, 1816, the former property was devised to his wife for life, with remainder in fee to his son John Vicary Thomas, one of the defendants; and the latter property was bequeathed for the residue of the term of 500 years to his wife for life, and afterwards to his son William, the husband of the plaintiff. Joseph Thomas died on the 28th of May, 1820, having made Abraham Wreyford the trustee under his will, in whom the legal estate in all the property vested.

The defendants for some time after the death of their father occupied the premises in question as tenants from year to year; but, on the 10th of April, 1834, a lease of those premises was granted by Mrs. Thomas, the mother of the defendants, and by Wreyford, to the defendant John Vicary Thomas, for sixty years, in case Mrs. Thomas should so long live. Both the defendants continued to carry on their business upon the premises. The plaintiff was in the actual possession of the other premises held for the residue of the term of 500 years, having been put into possession by Wreyford in the month of May, 1834. It appeared, that at one period of time after the death of Joseph Thomas the testator, and before the lease to the defendant John Vicary Thomas, Wreyford the trustee was in possession of both the premises.

The situation of the respective premises with regard to the drain did not become material, the defendants admitting the obstruction, and contesting the plaintiff's right to the easement. With regard to the claim of easement for the eavesdropping, it appeared, that, about thirteen years since, the top of the plaintiff's wall was covered with pantiles, which projected several inches; but that upon the buildings being accidentally burned, the wall was thatched, and the thatch projected some inches further than the pantiles had done. On this occa

sion, also, the wall was raised about three feet. The obstruction of the eavesdropping was caused by the defendants building a wall close up to the wall of the plaintiff, within the space over which the pantiles had formerly projected, and within the projection of the thatch.

The existence of the easements in question for the period of upwards. of twenty years was proved, and the obstruction of the plaintiff in the user of them was admitted; but it was insisted for the defendants that the right to the easements was determined by the unity of possession of the premises in Wreyford the trustee. It was likewise insisted with regard to the eavesdropping, that by the alteration made by the plaintiff in the height of the wall and the substitution of the thatched for the tiled roof, the right to that easement had ceased. The jury having found a verdict for the plaintiff with 40s. damages, the learned judge gave the defendants leave to move upon the first objection to

enter a nonsuit.

Erle now moved accordingly, or for a new trial.

LORD ABINGER, C. B. The union of possession in the trustee did not extinguish the easement, but only suspended it during that unity of possession; and upon his parting with the premises to different tenants, the right revived. The verdict is correct, and ought not to be disturbed.

ALDERSON, B. If I am seised of freehold premises, and possessed of leasehold premises adjoining, and there has formerly been an easement enjoyed by the occupiers of the one as against the occupiers of the other, while the premises are in my hands the easement is necessarily suspended, but it is not extinguished, because there is no unity of seisin; and if I part with the premises, the right, not being extinguished, will revive. That was the case here.

TRESPASS for breaking and entering plaintiff's close. Plea (besides others not material here), as to entering the close, that defendant, before the time when, &c., was lawfully possessed of a large quantity of hay, which was upon plaintiff's close in which, &c., and that defendant, at the times when, &c., by leave and license of the plaintiff to him for that purpose first given and granted, peaceably entered the close, to carry off the said hay, and did then and there peaceably take his said

1 See White's Bank v. Nichols, 64 N. Y. 65.

hay from and out of the said close, as he lawfully, &c., which are the said alleged trespasses, &c. Replication, de injuria.

On the trial before Erskine, J., at the last Somersetshire Assizes, it appeared that the plaintiff was tenant of a farm, including the locus in quo; and that, his landlord having distrained on him for rent, the goods seized, comprehending the hay mentioned in the plea, were sold on the premises; the conditions of the sale being that the purchasers might let the hay remain on the premises till the Lady-day following (1838), and enter on the premises in the meanwhile, as often as they pleased, to remove it. The defendant purchased the hay at the sale, and evidence was given to show that the plaintiff was a party to these conditions. After the sale, on 26th January, 1838, plaintiff served upon defendant a written notice not to enter or commit any trespass on his, the plaintiff's premises. In February following defendant served plaintiff with a written demand to deliver up the hay, or to suffer him, defendant, to have access thereto and carry it away; threatening an action in default thereof. The plaintiff, however, locked up the gate leading to the locus in quo, where the hay was; and the defendant, on 1st March, 1838, broke the gate open, entered the close, and carried away the hay. The learned judge told the jury that, if the plaintiff assented to the conditions of sale at the time of the sale, this amounted to a license to enter and take the goods, which license was not revocable: and he therefore directed them to find on this issue for the defendant, if they thought the plaintiff had so assented. Verdict for the defendant.

Crowder now moved for a new trial, on the ground of misdirection. LORD DENMAN, C. J. Mr. Crowder's argument goes this length, that if I sell goods to a party who is, by the terms of the sale, to be permitted to come and take them, and he pays me, I may afterwards refuse to let him take them. The law countenances nothing so absurd as this a license thus given and acted upon is irrevocable.

PATTESON, J. Tayler v. Waters, 7 Taunt. 374, shows that a license to use a seat at the opera-house, paid for and acted upon by sitting there, cannot be countermanded. Here the conditions of sale, to which the plaintiff is a party, are that any one who buys shall be at liberty to enter and take. A person does buy: part of his understanding is that he is to be allowed to enter and take. The license is therefore so far executed as to be irrevocable equally with that in Tayler v. Waters. The case put by Mr. Crowder is different. I do not say that a mere purchase will give a license; but here the license is part of the very

contract.

WILLIAMS, J. The plaintiff, having assented to the terms of the contract, put himself into a situation from which he could not withdraw.

COLERIDGE, J. The pleadings raise the issue whether, when the act complained of was done, the leave and license existed: it did exist if it was irrevocable; and I think it was irrevocable. Although no one of