1821. GRAY v. BOND. the matter presumed. (a) Here, none of the parties interested were aware of the practice which obtained with respect to the landing of the nets upon the particular spot. Though an uninterrupted possession for twenty years and upwards, be a bar in an action on the case, yet the rule must be taken with this qualification, that the possession was with the acquiescence of the person seised of an estate of inheritance. The mere knowledge of the tenant is not sufficient, otherwise he might collude, to the great inconvenience of his landlord. Daniel v. North. (b) The grounds for presuming the surrender of terms, are laid with equal tenderness to the interests of the owner of the inheritance, and shew the jealousy with which the law sanctions a presumption. Doe v. Wright (c), Doe v. Hilder. (d) The distinction between this case and those cited for the Plaintiffs is, that, in the latter, knowledge on the part of the person interested was presumed upon clear grounds. There is no such knowledge in evidence in this case, which completely falls within the reasoning of Lord Ellenborough, in Daniel v. North, and the rule there laid down by him and the rest of the Court. Bosanquet, in reply, was stopped by the Court. DALLAS C. J. I think the question was properly left to the jury to presume or not, from the facts before them, a right on the part of the Plaintiffs to land their nets on the locus in quo, and a grant from some former owner of the soil. We are not now called on to decide (a) Per Abbott C. J., in Doe v. Hilder, 2 B. & A. 791. (b) 11 East, 372. (c) 2 B. & A. 719, 720. (d) Ibid. 782. whether whether the jury were right or wrong in the conclusion to which they have come (though had I been one of them I should probably have come to the same), but the question is, whether the learned Judge left it to them properly, to presume a former grant. I agree with the argument which has been urged on the part of the Defendants, that mere lapse of time will not of itself raise against the owner the presumption of a grant. When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts; and here, where there is no direct evidence whether or not the owner of the land had any knowledge of what passed, the inference to be drawn must, in a peculiar degree, depend on the nature of the accompanying facts; and the presumption in favour of a grant will be more or less probable, as it may be more or less probable that those facts could not have existed without the consent of the owner of the land. The circumstances proved in the present case, were sufficient to leave to a jury, as circumstances from which the knowledge of the owner, and his acquiescence, on the supposition of a preceding grant, might fairly be presumed. This was done; and how could it be inferred that the owner had not such knowledge, when he was proved to be in possession of the property, when the landings were all made publicly, and the soil had actually been levelled to facilitate the Plaintiffs' access. I entertain no doubt, that the question was properly left to the jury. PARK J. It seems to me, that it was most fitly left to the jury in this case, to presume a grant. Notwithstanding the distinction which has been attempted, I cannot distinguish this case from that of Campbell v. Wilson, at Lancaster, and if ever there was a strong case, that was one, because there had been an award and an inclosure, twenty-six years before. The circumstances 3 A 3 in 1821. GRAY V. BOND. 1821. GRAY V. BOND. in that case, from which the knowledge of the owner of the soil might be inferred, were not stronger than those in the present. The case, indeed, does not come up to that of Daniel v. North, because there was something in the nature of the easement there which makes a difference. A landlord may not see windows thrown out, and a tenant may not feel the inconvenience; and this distinction is referred to by Le Blanc J. But in the present case, there is reasonable ground to presume the knowledge of the land-owner, and the question was properly left to the jury. BURROUGH J. Every case of this sort depends on its own circumstances, and the circumstances here place the point in a very clear light. Every act done by the Plaintiffs for 46 years, on the locus in quo, would have been a trespass, if they had not a right of landing there; but from 1774 to the present time, all these acts have been done openly and the only question is, whether there were any facts from which a Judge could leave it to a jury to presume a grant of the right in question. Undoubtedly, the circumstances were such as could scarcely have occurred without the knowledge of the owner. RICHARDSON J. This is not like a case of injuries arising to an owner from the collusion of his tenant; the question is, whether or no Mr. Preston had knowledge of what was taking place on his land; and I think the case was properly left to the jury. Judgment for the Plaintiffs. 1821. GEORGE PALMER, WILLIAM LOADEN, and May 31. An assignment to trustees of all the emoluments and profits which, during the life of A. and his continuing to hold the office of clerk of should arise peace, or in HIS honour the vice-chancellor, by decree made on the hearing of this cause, on the 3d June, 1820, ordered a case, of which the following is the substance, to be stated for the opinion of this Court. The Defendant, Vaughan, who is clerk of the peace for the city and liberty of Westminster, which office he has held since the year 1802, under the custos rotulorum of the city, liberty, and county, and from the time of his appointment, has executed the office by his deputy Lorenzo the peace, Stable, an attorney residing within the liberty, by inden- or become due ture, dated the 25th January, 1806, assigned to George to him as Palmer and William Loaden, their executors, admini- clerk of the strators, and assigns, "All and singular the income, respect of his emoluments, produce and profits whatsoever, which, during the life of him, the said Thomas Wright Vaughan, and his continuing to hold the said place, or office of clerk of the peace for Westminster, should arise or become due, or payable to him, the said Thomas Wright Vaughan, as clerk of the peace for Westminster, or otherwise by reason, or in respect of his said place or office, and all arrears thereof, then due, after deducting the salary or allowance of the deputy for the time being, of him, the said Thomas Wright Vaughan, in the said office, and all other expences attending the execution of the said office. To hold, receive and take the said income, emoluments, produce and profits, of all and singular other the premises thereby assigned, thenceforth office, after to time render the surplus and 1821. PALMER บ. BATE.. unto the said George Palmer and William Loaden, their executors, administrators, and assigns, upon trust, that the said George Palmer and William Loaden, and the survivor of them, his executors, administrators, and assigns, should in the first place, by and out of the same, retain and deduct, and reimburse themselves, and himself, certain costs and expences therein particularly mentioned, and all such costs, charges, and expences, as they, or any of them should have incurred, or become liable to pay, in or about the execution of the aforesaid trust. And should, and would in the next place, pay and apply the same in, or towards payment and discharge of the interest, which from time to time should become due, or owing to Thomas Baylis and Samuel Ridge, respectively," on certain debts, due from T. W. Vaughan to Baylis and Ridge, according to the true intent and meaning of a covenant contained in the indenture. "And should from time to time render and pay all the surplus and residue of the said income, emoluments, produce and profits, which should from time to time remain, after answering and satisfying the trusts and purposes aforesaid, unto the said Thomas Wright Vaughan, his executors, administrators, or assigns, for his or their proper use and benefit." The Defendant, by the same deed, constituted the trustees, his attornies, to demand, recover and receive the said income, emoluments and profits, and to give receipts and discharges for the same; and covenanted, that neither he, his executors or administrators, would at any time thereafter, by himself or themselves, or by any agent or agents, receive or take into his or their possession, the said income, emoluments, produce and profits, or any part thereof, or revoke, or make void, the powers and authorities thereinbefore contained. The |