The testator died on the 3d of January, 1814, without leaving any issue, and without having revoked or altered his said will.

*Thomas Pearce, the tenant for life named in the will, died without

*334] issue, and never did in any manner execute the power of adoption or

selection of a relation of the testator, under or according to the will.

The next or nearest relations, or nearest of kin of the testator, living at his decease, of the name of Pearce, being males, were his three first cousins; viz., first, the said Thomas Pearce, the tenant for life, who was the son of Robert Pearce, deceased, which Robert Pearce was born in 1711, and was an uncle of the said R. Pearce, the testator; secondly, Richard Pearce, the plaintiff in this suit, who was the son of the testator's uncle William Pearce, which William Pearce was born in 1715; and thirdly, William Pearce the younger, brother of. the said plaintiff. The aforesaid three cousins were, at the time of the decease of the testator of the respective ages following:-Thomas Pearce, sixty-seven years; Richard Pearce, the plaintiff, sixty-six years; and his brother, William Pearce, fifty-nine years. (a)

The questions for the opinion of the Court were, first, whether, under the circumstances stated, Thomas Pearce took any and what estate under the ultimate limitation contained in the will of the testator; secondly, whether, under the circumstances stated, the plaintiff, Richard Pearce, took any and what estate under the ultimate limitation contained in the will.

The case was argued in Trinity term.

Wright, for the plaintiffs. Thomas Pearce took only an estate for life, and Richard Pearce, the plaintiff, took the fee under the ultimate limitation.

*835] The intention of the testator obviously was to keep the property in his own family and his own name as long as possible, and that intention would have been defeated if Thomas took a fee, for he might transfer the property to persons not bearing the name of Pearce. But whatever was the testator's intention, as he has by express words given Thomas an estate for life, the Court cannot enlarge that estate and there is the less reason for seeking to do so, as the testator has shewn that he knew how to express himself when he proposed to give an estate in fee.

Besides, Thomas Pearce has a power of appointment, and such a power cannot exist with a greater estate than an estate for life.

The next and nearest relation, must mean the nearest relation next after the tenant for life. Thus in Briden v. Hewlett, 2 Mylne & K. 90, a testator gave his personal estate to trustees, upon trust to convert into money, and invest the same, and to pay the interest to his mother for her life; and after the decease of his mother he gave all his estate and effects to such person or persons as she should by her will direct and appoint; and in case his said mother should die without a will, then to such person or persons as would be entitled to the same by virtue of the statute of distribution: the mother survived the testator, and died intestate it was held that the persons who were the testator's next of kin at the death of the mother were entitled to the bequests. In Holloway v. Holloway, 5 Ves. 399, which may be referred to for the defendants, there was no power of appointment. And in Bird v. Wood, 2 Sim. & Stu. 400, by the express language of the will, the remainder to the next of kin was to be considered a

vested interest from the death of the testatrix.

Again, Thomas Pearce's power of leasing is confined to seven years, which is *3361 incompatible with the lessor *being possessed of a fee. And he ought not, by the possession of such an estate, to obtain the means of defeating the testator's intention as to the name of the remainder-man; for in Leigh v. Leigh, 15 Ves. 92, under a devise to the devisor's sister A., then unmarried, for life, with remainders to her first and other sons in tail male; to her daughters in tail as tenants in common; remainder to devisor's sister B., then married, (a) By a pedigree annexed to the case, it appeared that Zachary, a brother of the testator, born in 1761, went to sea, and it was admitted he had not been heard of since

for life, and to her first and other sons in tail; remainder to the first and nearest of devisor's kindred, being male, and of his name and blood, that should be living at the determination of the estates before devised, and to the heirs of his body; it was held, that a person claiming under the last limitation, must be of the name, as well as the blood of the devisor; and that the qualification as to the name was not satisfied by taking the name under the king's license previous to the determination of the preceding estates.

It may be conceded, that a tenant for life is not, as such, excluded from taking under a subsequent limitation in fee. But he is excluded by the language of this will, and by a disposition of the testator's property inconsistent with such a title.

Preston, contrà. Thomas Pearce took the fee under the ultimate limitation. He made no appointment, and at the time of the testator's decease he was the next and nearest male of kin of the testator. Those words must be taken in their plain legal sense, unless the context plainly shew a different intention: Holloway v. Holloway, 5 Ves. 399. In Harrington v. Harty, 1 Cox, 131, a devisee who had a life estate was held to take a fee as next of kin under an ultimate limitation like the present, *notwithstanding his life estate was accompanied with a power of appointment. And Jones v. Colbeck, 8 [*337 Ves. 38, Cholmondely v. Clinton, 1 Jac. & Walk. 1, Doe dem. Garner v. Lawson, 3 East, 278, Doe dem. Cholmondely v. Maxey, 12 East, 589, Rayner v. Mowbray, 3 Bro. C. C. 234, are all authorities to the same effect.

In Elmsley v. Young, 2 Mylne & K. 82, where on the failure of a particular gift to one for life with remainders over, the next limitation in the deed was to the settlor, or such person as he should appoint, and in default of appointment to such person or persons as should at the time of his death be his next of kin; and the settlor died before the tenant for life without having made any appointment; the tenant for life, who was one of the settlor's next of kin, was held not to be excluded from the benefit annexed to that character.

The object of the testator in this case was to leave a loophole for his brother Zachary or his issue, in case it should turn out he had not perished at sea; a case within the bounds of possibility, as people have been heard of after they have been missing for fifty years. If Richard were to take the fee, he as well as Thomas might defeat the testator's intention by transferring the estate to one who was not a Pearce; and such a construction of the will would also exclude the heir at law, for Thomas was the heir.

Wright, in reply, distinguished the cases relied on for the defendants, as turning on the intention of the testator in the particular case to be collected from all the accompanying circumstances, and if no intention appeared that the tenant for life should take under the ultimate limitation, at least no intention to exclude him was expressed or could be inferred; whereas here it was

plain, from the express devise for life, accompanied with powers of ap- [*338 pointment and leasing, and from the whole context and object of the will, that the testator meant to exclude Thomas Pearce from the ultimate limitation; by next and nearest of kin, he meant the nearest next after Thomas. There was nothing in the will to shew that Zachary had ever been thought of. The following certificate was delivered in Michaelmas term:This case has been argued before us by counsel, and we have considered the same, and assuming Zachary Pearce, the testator's brother, to have died without issue in the testator's lifetime, we think, under the circumstances above stated, Thomas Pearce took an estate in fee under the ultimate limitation contained in the will of the testator. In consequence of our answer to the first question, it becomes unnecessary to answer the second.

N. C. TINDAL,

J. A. PARK,
S. GASELEE,
J. VAUGHAN.

*BOWER v. HILL and Another. November 24.

In case for obstructing plaintiff's right of way to his close by a navigable water-course it appeared that the plaintiff's close, which abutted on the water-course, had been, detached, about five years before the action, from certain premises called the King's Head Inn. The only evidence of user was by persons frequenting the King's Head Inn in boats, before the plaintiff's close was detached: Held, not evidence to go to a jury to support the right claimed by the plaintiff.

THIS was an action upon the case for obstruction of a right of way claimed by the plaintiff, by reason of his possession of a close of land, from the said close of the plaintiff unto and along a certain stream or water-course, unto and into a certain public navigable river, called the river Nen, and so back again, for himself and his servants to go, return, pass, and repass in boats every year, and at all times of the year at his and their free will and pleasure."

At the trial before Littledale, J., it appeared that the close, in respect of which the plaintiff claimed the right of way, abutted on the stream or watercourse in question, and had formerly constituted parcel of one entire property called the King's Head Inn or yard; but about five years ago the occupier of the King's Head Inn had put up a pair of gates at the bottom of his yard, and had thereby separated the yard from the stream or water-course; leaving the space of ground between the yard and the stream in possession of the plaintiff. There had been no user of the stream for the last sixteen years; but before that period it appeared that boats went to the King's Head Inn and back for various purposes as occasion required; that coals were carried thither; corn, for the purpose of being deposited in granaries in the yard; bricks, tiles, and other materials for the repair of the house.

The learned Judge directed a nonsuit on two grounds; one, that the right of way had been proved to belong to the King's Head Inn and yard as one entire subject; the other, that no user of the way had been proved either by the owner of the King's Head Inn or his servants.

*340] *Adams, Serjt., pursuant to leave given at the trial, moved to set aside the nonsuit. He contended that it was for the jury to say whether the original grant of a right of way along the water-course was made to the owner of the land, or to the owner of the house, and it was in ease of the grantor that the right should belong only to the party who owned the land by the side of the cut. [TINDAL. The evidence of user is confined to the house.] But the owner of the house was at the same time the owner of the land by the side of the cut. And if the grant were to the owner of the house and land as one entire property, the separate occupier of every portion of that property was entitled to the benefit of the grant.

(Upon the second ground of nonsuit, the propriety of which was also contested, the Court pronounced no opinion.)

A rule nisi having been granted,

Hill, and Miller, shewed cause. First, the evidence, as far as it goes, is evidence of a right attached to the King's Head Inn only. There is no proof of a right attached to the frontage of the water-course. The plaintiff's close was detached from the King's Head Inn at a recent period, and there can be no apportionment of the original right. Such an apportionment might render the grant much more extensive than the grantor intended. From the user it must be inferred that the grant, if any, was only to the owner or occupier of the King's Head Inn. In Ballard v. Dyson, 1 Taunt. 286, Lawrence, J., says, "The question is, what was the grant in this case? That is to be collected from the user; for it is to be presumed that the use has been according to the grant."

[*341

Adams, in support of the rule, contended that on both points there was at least evidence to go to a jury, and that therefore there ought to be a new trial. Cur. adv. vult. *TINDAL, C. J. This was an action upon the case for obstruction of a right of way, claimed by the plaintiff "by reason of his possession of a close of land, from the said close of the plaintiff, unto and along a certain stream or water-course, unto and into a certain public navigable river called the river Nen, and so back again, for himself and his servants to go, return, pass, and repass in boats every year, and at all times of the year, at his and their free will and pleasure." At the trial before Mr. J. Littledale, he directed a nonsuit to be entered upon two grounds, one of which was, that upon the evidence the right was found to belong to the King's Head Inn and yard, as one entire subject, and not to the frontage occupied by the plaintiff; and as we are satisfied that the nonsuit ought to be entered upon this objection, it becomes unnecessary to advert to any other.

[*342

The evidence on the trial of user and enjoyment of the right of passage by boats and barges was referable to the King's Head Inn and yard, and to those premises only. There was no other subject-matter to which the user could pos sibly apply. The proof was, that boats went up to the King's Head yard and back for various purposes, as occasion required; that coals were carried there; corn for the purpose of being deposited in the granaries in the yard; bricks, tiles, and other materials for the repair of the house. From such evidence it might fairly be left to the jury to presume a grant from the owner of the dyke or stream, to the owner of the King's Head Inn and yard, that the occupier of those premises might pass and repass from the same to the river Nen, and back again, by themselves and their servants, in boats and barges, for the more convenient use and enjoyment of the same premises; and if such grant once existed, there was nothing in the evidence at the trial to shew that it has ever been extinguished or *released; but for any thing that appears to the contrary, the occupier of the inn and yard has still the full right to the enjoy ment of the easement created by such grant. It appeared indeed on the trial, that for the last five years the occupier of the King's Head Inn had put up a pair of gates at the bottom of his yard, and had thereby separated the yard from the dike or stream, during which time the space of ground between the yard and the stream had been in the possession of the plaintiff; and it was upon this evidence that the plaintiff rested his claim to the right of passing along the dike; contending, that the right to the easement attached to each and every part of the land which formed any part of the King's Head yard; and that as he the plaintiff had the possession of the frontage of the ground adjoining to the dike or stream, so he had the right of passage which was the subject of the grant. We think, however, such a construction of the grant would lead to very unreasonable consequences. The grant itself, if presumed to have ever existed, is still in full force. Nothing has been done by the grantee to release it. There is only a temporary discontinuance of the enjoyment, or at most a temporary suspension of the right, not any extinguishment of it. The occupier of the King's Head Inn and yard may resume the user at any time, by taking any part of the frontage into his own possession, so as to have access to the dike; and the consequence would be, if the plaintiff were held to be entitled to the right of passage, that two different persons would be entitled to use it for themselves and their servants with boats and barges, or indeed as many different persons as possessed any share of the frontage. This would be an unreasonable construction against the grantor, who may have been contented to grant the right to the occupier of the King's Head Inn and yard, from his knowledge of the degree of user which would follow from the grant when so *limited. Independently, however, of this consideration, we think upon the broad [*343 ground, that if this grant were produced in evidence the plaintiff could not bring himself within the description of the grantee, he not being the occupier of the

King's Head Inn and yard, there was no evidence whatever for the jury in support of his claim, and consequently that the nonsuit is right.

Rule discharged.

CLARK and Another, Assignee of SCRIVENER, a Bankrupt, v. GILBERT. Nov. 24.

Defendant held a certain deed of lease on which he had a lien for 300l. as attorney of S.: a commission of bankrupt was issued against S. in December, 1829; defendant acted as attorney under that commission; and in 1831, after notice of a petition to supersede it, he joined with the assignee under the commission in a sale of the lease, and out of the proceeds was paid the 3001. due to him from S.

The commission of bankrupt having been superseded in 1832 for want of a sufficient petitioning creditor's debt, and a new commission having issued, Held, that defendant was liable to refund the 3001. in an action for money had and received to the use of the assignee under the second commission, and also money received in 1831 for rent, &c., accruing to S.

THIS was an action of assumpsit, brought to recover certain sums of money alleged to have been had and received by the defendant to the use of Scrivener before his bankruptcy, and to the use of the plaintiffs as his assignees since the bankruptcy.

A general verdict was found for the plaintiffs, damages 3317. 16s., subject to the opinion of the Court on the following case :

By indenture of lease, bearing date the 17th of November, 1828, certain premises in Ratcliffe Highway, in the county of Middlesex, were demised by Abraham Gole and Thomas Gole to Scrivener the bankrupt, for the term of eightyone years, at a rent of 1007. At the time of issuing the commission against *344] Scrivener the bankrupt, he was indebted to the defendant, an attorney, in 2347. or thereabouts, for moneys advanced to him by the defendant, and for professional business done; and the defendant had possession of the lease as Scrivener's attorney.

Whilst the defendant was in possession of the lease, namely, on the 5th of December, 1829, Scrivener, by indenture bearing date on that day, mortgaged by way of demise part of the said premises to his father Abraham Scrivener, to

secure 6007. and interest.

On the 30th of December, 1829, a commission of bankrupt was issued against the mortgagor, the said Scrivener, upon the petition of one William Stevens, who was afterwards appointed sole assignee of the estate and effects of the bankrupt; and an assignment thereof was made to him accordingly. The defendant was Stevens's attorney, both as a petitioning creditor and assignee under that commission, which commission was afterwards superseded as hereinafter mentioned.

On the 26th of March, 1830, a petition to the great seal was presented by Augustus White, a creditor, to supersede the commission of bankrupt, on the ground of the insufficiency of the petitioning creditor's debt; upon which petition the defendant appeared as solicitor for the petitioning creditor and assignee, W. Stephens; and after some time an order was made upon that petition to supersede the commission.

After notice of the petition, and whilst the same was pending, Stevens, an assignee, with the concurrence of the defendant, caused the interest of the bankrupt in the premises comprised in the said lease, subject to the mortgage, to be sold by auction; and one George Pound became the purchaser at the price of 350%. At the time of the purchase Pound paid 507. into the hands of the auctioneer by way of deposit, who, after retaining 467. 6s. for the expenses of the