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1832.

DUNCAN .

u. PASSENGER.

Sed per Curiam. There, in the allegation “ then and there” must apply to the county named in the margin, and is, therefore, a sufficient allegation of place.

Judgment for Plaintiff.

April 27.

OAKLEY V. ADAMSON.

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From a cove- IN this action the Plaintiff claimed a right of way along nant in the

* a passage between his house and the Defendant's, unlease, to con- der a lease granted to him in 1819, but the property was tribute with in Middleser, and the lease not being registered, it could other occupiers of the not be produced in evidence. The Defendant at the lessor's pro- trial relied on a registered lease of 1820, from the same perty a rateable proportion

lessor, which conveyed to him all ways, &c. and, without of the expense exception or qualification, the soil over which the Plainof keeping up tiff claimed the right of way. paths used in

n be The Defendant's lease, however, contained a covetween them, nant, by which he engaged to contribute with the other coupled with the fact that

occupiers of the lessor's property, a rateable proportion the Plaintiff of the expens of keeping up paths, &c. used in comhad always

mon between tnem; and it was proved by a former used a path between his occupier of the Defendant's house, in partnership with house and the Defendant at the time, that the Plaintiff had used the Defendant's from a

the path in question ever since he came to occupy his period anterior premises in 1814, and that there was no other path to

Detend, which the covenant could apply. The jury found for the ant's lease, and that there was Plaintiff a right of way on foot. no other path to which the Andrews Serjt. obtained a rule nisi for a new trial, covenant could

on the ground that the absolute grant of the soil to the Court inferred, Defendant was incompatible with the right of way

claimed by the Plaintiff under the same lessor. the path, which was included in the demise to the Defendant, was demised subject to a right of way in the Plaintiff.

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Wilde Serjt., who shewed cause, relied on the cove 1832. nant in the Defendant's lease, which, explained by the

OAKLEY usage, was sufficient to shew that the lessor had granted the premises to the Defendant subject to the right of way. ADAMSON.

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Andrews contended, that the Defendant's lease, conveying to him, without ambiguity, an absolute right in the soil, ought not to be qualified by parol evidence.

Tindal C. J. The lease containing the grant of the right of way to the Plaintiff cannot be read, and we may assume that the lessor meant to convey the soil of the passage in question to the Defendant: but he has also inserted in his lease to the Defendant a covenant that the Defendant shall contribute with the other occupiers a rateable proportion of the expense of repairing paths, &c. enjoyed in common; and there is no path but the path in question to which the covenant can apply. Are we to give any effect to that covenant or not? If we are to do so, the lease to the Defendant is not incompatible with the grant of a prior right of way to the Plaintiff. On the face of the lease there is a stipulation consistent with the existence of a right in some other person: we may, therefore, look at the facts to explain the nature of this stipulation, and they shew that the Plaintiff used the way from a period anterior to the date of the Defendant's lease, and while the Defendant's partner occupied the adjoining premises. We are, therefore, satisfied that the Defendant had notice that he took this property subject to a servitude or right of way, and that the verdict ought not to be disturbed.

Park J. Assuming that the Defendant took the soil of the passage under his lease, where is the inconsistency that another should have a right of way over it. Coupling the testimony in the cause with the coveVol. VIII. Bb

nant

1832.

nant in the Defendants lease, I think it clear that the lessor did not mean to derogate from the Plaintiff's right of way.

OAKLEY

ADAMSON.

GASELEE J. As there was no other path to which the covenant could apply, the parol evidence puts an end to the case.

ALDERSON J. I am of the same opinion. The question is merely on the construction of the Defendant's lease.

Rule discharged. (a)

(a) Morris v. Edgington, 3 Taunt. 24. Others, 5 B. & A. 830.

Kooystra v. Lucas and

April 30. HANCOCK and Another, Assignees of NICHOLLES,

a Bankrupt, v. Caffyn. Defendant, a CAFFYN, being possessed of a house which he held on leaseholder, a long lease from Harrison the owner, put Nicholles underlet to N. and put in possession of it by an agreement under seal bearing him in pos- date September 10. 1828, in which he covenanted to session under

grant Nicholles a lease of the premises by indenture, to grant a when Nicholles should have paid for furniture and other lease when N. considerations, 12001., which he was to do by instalshould have paid 12001., ments in three years: Nicholles covenanted, in the mean which he was time, to pay 250l. a-year to Caffyn for the rent; and to do by instalments in

that if the rent were in arrear Caffyn should be at liberty three years, to enter and distrain. in the mean

Nicholles duly paid his rent to Caffyn, but Caffyn time paying rent at certain omitted to pay what was due from himself to Harrison ; days to Defendant, subject to distress for nonpayment. Defendant received rent from N. but omitted to pay the superior landlord, who distrained on N. for arrears due from Defendant. N. having become bankrupt, Held, that the damage incurred by this distress was a cause of action on which his assignees might sue.

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whereupon, on the 21st of October 1829, when only a quarter's rent was due from Nicholles to Caffyn, Harrison, the superior landlord, distrained on Nicholles for 1251., being half a year's rent due from Caffyn to Harrison on the 24th of July preceding. Nicholles's goods were sold to a disadvantage, and he had also to defray the expense of the distress. Shorly afterwards Caffyn himself distrained for a quarter's rent. Nicholles then became bankrupt, and his assignees brought this action against Caffyn for the damage incurred by Nicholles in having been so as aforesaid subjected to Harrison's distress.

The first count of the declaration stated, that before and at the time of committing the grievance by Defendant, as thereinafter next mentioned, the Defendant held and enjoyed a certain messuage, cottage, and premises, situate in the parish of St. George, Hanover Square, in the county of Middlesex, as tenant thereof to one John Harrison, at and under a certain yearly rent, to wit, the yearly rent of 250l. payable by Defendant to said John Harrison, to wit, at London : that whilst Defendant was such tenant to J. Harrison, and before and at the time of committing the grievance thereinafter next mentioned, and before John Nicholles became a bankrupt, to wit, on the 21st October 1829, to wit, at &c., John Nicholles, at the special instance and request of Defendant, had become and was tenant to Defendant of said messuage, cottage, and premises, with the appurtenances, at and under a certain yearly rent, to wit, the yearly rent of 250l., payable to Defendant quarterly on the 10th December, 10th March, 10th June, and 10th September in every year, to wit, at &c. ; and thereupon it then and there became and was the duty of Defendant, so long as Defendant continued such tenant to J. Harrison, and so long as J. Nicholles continued such tenant to Defendant, to pay said first-mentioned rent to J. Harrison, and to indemnify and save harmless

B b 2

J. Nicholles

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J. Nicholles from and against the payment of any of said rent so payable to J. Harrison over and beyond the amount of said rent so payable to Defendant as aforesaid, which might be due and in arrear from J. Nicholles to Defendant, and from and against any distress, or costs, charges, damages, or expenses which should or might be made, arise, or happen to J. Nicholles for or by reason of the non-payment thereof; and although said tenancy of Defendant to J. Harrison, and said, tenancy of J. Nicholles to Defendant, was and continued for a long time until and after the committing of the grievances thereafter next mentioned, and although a small sum of money only, to wit, the sum of 841. 178. 10d, of rent was due and in arrear from J. Nicholles to Defendant at the time of committing the grievances thereinafter mentioned, yet Defendant, not regarding his duty aforesaid, but contriving and fraudulently intending to injure and defraud J. Nicholles in that behalf, before he became a bankrupt, and said Plaintiffs, as assignees, as aforesaid, after he became a bankrupt, did not nor would, during the continuance of said tenancies, pay said first-mentioned rent to J. Harrison, or save harmless or indemnify J. Nicholles according to his duty, but wholly neglected so to do; and by reason thereof, during the continuance of said tenancies, and before J. Nicholles became a bankrupt, to wit, on &c., at &c., a certain distress was made by and on the behalf of J. Harrison on divers goods and chattels of J. Nicholles, to wit, &c., of great value, to wit, of the value of 4001., then in and upon said messuage, cottage, and premises, for a certain sum of money, being in amount much over and beyond the amount of said rentso due and in arrear from J. Nicholles to Defendant, to wit, the sum of 1251. then due and in arrear from Defendant to J. Harrison for and in respect of said rent so payable to him as aforesaid: and said J. Harrison afterwards, to wit, on, &c., at &c., sold

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