v. the statute, merely by gaming abroad. The statute 9 Ann. puts ROBINSON a negative upon all usages to the contrary. Does it not extend of course to the usage of France? BLAND. WILMOT, J.-There seems a material difference between the money lost and the money lent. There is also a difference between the wording of statute Car. 2, and statute of Anne. The former extends only to money lost, but then it extends to all contracts. The latter extends also to money lent, but it only mentions securities. Perhaps this was intended to prevent the giving of sham securities, to blind the real consideration of the debt. In Slater and Emerson, 1 Geo. 2, this difference was taken by Eyre, C. J., at Nisi prius. As to the money lost, [ *248 ] I have great doubts about it. I have been staggered, since I came into Court. I thought, primâ facie, it was within the reason of the statutes of usury. But the reasons given to the contrary have great weight with me. I think, we cannot look into the principles which must govern this case too narrowly. I wish the laws of other nations might be looked into. Almost all of them have pursued the civil law; and the code de aleatoribus vacates such contracts on gaming. It would be strange, to give the law of France a more liberal construction than it has at home; to give a gaming creditor, a real (by elegit) instead of a personal security. Let it be considered, whether the converse of this proposition be true; will a contract void in France, and good in England, be avoided here, because made in France? As in the case of a man, above twenty-one and under twentyfive, making a bond. Is not the law of the domicilium or forum where the plaintiff sues, to govern these cases, that are of a contradictory purview in two different kingdoms? ADJOURNATUR. vide Michaelmas, 1 Geo. 3, post, 256. MICH. TERM,-1 GEO. III. 1760.-K. B. [249] THE KING V. The Occupiers of ST. LUKE'S HOSPITAL. S. C. 2 Burr. 1053. out naming persons, not liable to poor's rates. Hospitals, not liable for the lodging, &c. of THE occupiers of St. Luke's Hospital, Middlesex, were rated, Occupiers, withby that name, to the poor's rate of the parish of D. On appeal, the Sessions confirmed the rate; stating specially, that in 1750 the city of London, by indenture, demised certain messuages in Moorfields to five persons, in consideration of 1007., and that the same should be converted to an hospital for lunatics, under a rent of 10l. per annum; with covenants, that the lessees should convert the premises, or some part thereof, into such hospital, and to no other use or purpose whatsoever; and a proviso, that the lease should be void, if the same was applied to other purposes.-That twenty-nine houses had stood upon the ground so demised, which were usually rated to the the poor objects. THE KING V. ST. LUKE'S. poor. That the premisses were converted into an hospital for lunatics, according to the intention of the lease; and that every part is laid out in wards or cells, or necessary offices, or in apartments for persons attending thereon; one Joseph Mansfield being the steward and principal resident there. That the whole is maintained by voluntary contribution, and managed by a committee of subscribers; and that no other person, but such necessary attendants, &c. have any dwelling or occupation there. And that the lessees have not, nor can have, any interest or occupancy in the premisses. Lord MANSFIELD, C. J.-Two objections have been made to this rate. First, That the word occupiers is too general, that it says no more than the statute itself does; and does not [ *250 ] *reduce, as a rate ought to do, the vague description of the statute to a certainty. Secondly, Suppose this could be got over, that an hospital in such a situation is not liable to be rated. For the Court will lay down no general rule for all hospitals (a); their exemptions must depend upon the special circumstances of the house.-Neither can any consequence be drawn from hospital lands (as was attempted at the bar) to the scite of the hospital itself. As to the first, we think it a fatal objection. But to prevent farther trouble in this case, we will also declare, that we think this hospital, thus circumstanced, is in no shape liable to be rated. It has been said, that the owner of lands and houses shall not so appropriate and alter them, by his own act, as to discharge them from rates. But this position is not true. Ownership confers a right of altering the nature of the property. An owner may pull down houses which are usually rated very high, and convert the situation into fields, which are rated comparatively low.-Suppose the objection to the generality of the word occupiers was removed; who can be the occupiers here? There are but three classes to whom that description can relate. 1. The five lessees; who have no interest, but for a special purpose; no occupation; but are such nominal persons, as the cryer of the Common Pleas is, in the form of a recovery. 2. The officers and attendants; which is the strogest ground for the rate. In the Case of Cheslea Hospital (b), it was determined, that the officers there, who have commodious houses and apartments, were severally rateable for their respective lodgings; which shews (by the way) that occupiers in general of any hospital were not thought to be liable. But here are no lodgings for officers, servants, &c. except during their actual attendance. Mansfield, the steward, was originally rated for the whole by name; but that rate was quashed by consent, as he was clearly not the occupier of all. This shews the word occupiers not to have ca (a) The objects of a charitable foundation, in the actual occupation of the almshouse and lands for their own benefit, and liable to be dismissed for any breach of the rules, are rateable; R. v. Munday, 1 East, 584. (b) Eyre v. Smallpace, cited 2 Burr. 1059. On the same ground the commanding officer, having extensive apartments in barracks, is rateable; R. v. Terrot, 3 East, 506; so the keeper of the canteen; R. v. Bradford, 4 M. & S. 317; R. v. Hurdis, 3 T. R. 497, acc. THE KING v. ST. LUKE'S. sually slipt into the rate, but to have been inserted by design and upon good advice; because no person was liable to be rated as an individual, they were willing to try, what could be done with them in their collective capacity. In the case of the window-tax, it has been uniformly held, that the lodg*ings appropriated to officers (if any such) are liable. So they [ 251 ] would be here, if any such existed. It has also as uniformly been held, that wards and cells for poor objects are not liable. 3. These are the third class; the poor mad objects. But the rating of them would be so absurd, that it was given up at the bar. Therefore, we are all (absente Foster) of opinion, that the rate, and the order of Sessions confirming it, must be quashed (c). (c) R. v. St. Bartholomew's Hospital, 4 Burr. 2435, S. P. The master of a free school, occupying a house and garden under the trust, may be rated. Per Grose, J." In R. v. St. Luke's Hospital, which was one of the first cases on this subject, the ground on which the Court proceeded was, not that the house was given to charitable uses, but that there was no person that could be said to be the occupier of it. The rate there was not considered as improper, because the property was not in itself rateable, but because no occupier could be found. But in this case there is an occupier;" R. v. Catt, 6 T. R. 332; R. v. Waldo, Cald. 358, acc. Prisoners in the Fleet are not rateable for the rooms they occupy, though the warden is; R. v. Eyles, Cald. 407; neither are soldiers in a barrack; per Ld. Kenyon in Eckersal v. Briggs, 4 T. R. 6. See also Ld. Amherst v. Ld. Somers, 2 T. R. 372; Holford v. Copeland, 3 Bos. & P. 129; R. v. Gardner, Cowp. 79 and R. v. Hall, 1 B. & C. 123, 2 Dow. & R. 241; R. v. Poynder, Id. 178, as to the meaning of the word "Householder;" 2 D. & R. 258, S. C. Holt, C. J., said-" If one tenement be divided by a partition, and inhabited by different families, viz. the owner in one and a stranger in another, these are several tenements, severally rateable, while they RICHARD GOOD's Case. I MOVED for a habeas corpus, directed to the Captain of the Princess Royal man of war, to bring up Richard Good, being impressed to serve as a mariner, on an affidavit, that he was in custody, and had a landed estate in possession, of 26l. per annum freehold, and 201. per annum copyhold. But it not being sworn, that Good was no seafaring man, the Court (absente Foster) desired to have that point cleared up, if possible. The next day the affidavit (being resworn) stated him to be GOOD's Case. merely a ship-carpenter, and never used to go to sea (d). Whereupon the writ was awarded. Upon suggesting to the Court, that the hesitation in granting it yesterday might be misconstrued, as if an objection from the property of the party pressed was not of itself sufficient, it was declared by Dennison and Wilmot, Js. (absentibus Lord Mansfield and Foster), that the Court had given no opinion upon that point; but chose to have the affidavit amended, in order to avoid the question (e). (d) But a carpenter belonging to a vessel is not exempt; Boggin's Ca, 13 East, 549. (e) But it has since been decided, that a seaman is not exempt on the ground of being a freeholder; R. v. Douglas, 5 East, 477: nor a liveryman or freeman of London; R. v. Young, 9 East, 466; nor a headborough; Fox's Ca., 5 T. R. 276. See 13 G. 2, c. 17, and Goldswain's Ca., post, 1207. Lands pass by fore a recovery after the deed to lead the uses. SELWIN v. SELWIN. (Ante, 222.) THIS case was again argued by Mr. De Grey, for the plaintiff, and Mr. Norton, for the defendant. Mr. De Grey cited Toke and Glascock, 1 Saund. 250, 21 Car. 2, to shew, that by the bargain and sale, the bargainee took only an estate for life, descendible to his heir, but not devisable. That in Machil and Clerk, 2 Ld. Raym. 778, which says, it was a base fee, this was neither the point in judgment, [ *252 ] *nor necessary to the point. [The] reasons then given were Holt's own, and not communicated to his brethren; therefore only the dictum of one Judge, not the resolution of the Court; · Farresl. 18, Com. 119, S. Č. He argued, that recoveries are held to be revocations of wills, made by tenants in fee-simple; that it would be strange, if they should establish, that those made by tenants in tail should make a void will valid, and a valid will void. That as to the doctrine of relation; judicial relations and fictions were no rule for any other. That feoffments are not perfect without livery; grants without attornment; bargain and sale without enrollment: yet nothing vests thereby, through any relation back to the first operative parts of them. That in the conveyance by lease and release, the freehold does not pass from the date of the lease, but of the release. That executory devises are not devisable by will made before the contingency happens, [see] 3 Lev. 427 (ƒ): nor, in consequence, any other possibilities. Mr. Norton argued, that the bargain and sale vested a reversion in fee in John Selwin, expectant on the death of his father. That it was a base defeasible fee when vested, but became afterwards indefeasible and absolute, by the completion of the recovery; which took away the entry of the issue in tail.—That the recovery vests nothing, but only substantiates the interest before vested by the bargain and sale: which differs this case (f) Bishop v. Fountayne, now over-ruled; see n. (m), infra. SELWIN v. SELWIN. from a mere covenant to suffer a recovery, which vests nothing at all. That tenant in tail may do every act, that tenant in fee-simple conditional could do, before the statute de donis; except to the prejudice of his issue. He may therefore convey a defeasible fee, which is no prejudice to the issue, who by his entry may at any time defeat it. In Stapleton and Stapleton (g), 2d August, 1739, in Chancery; tenant for life, remainder to his son in tail, joins with his son, A. D. 1724, to make a lease and release, with covenant to suffer a recovery. The son dies: and afterwards, in 1725, the recovery is suffered. [253 ] Two points arose, 1. Whether this recovery could operate on the conveyance in 1724; 2. Whether this was such an agreement, as would bind the grandson, the son of tenant in tail, in equity. Lord Hardwicke held the affirmative in both points: and that the estate which passed by the deed in 1724 was a base fee, as held in Machil and Clarke. He argued, lastly, that it was a good contingent use, and, as such, devisable. Because, 1st, It has been held to be assignable: Wright and Wright (h), 15th March, 1749, in Chancery; in 1697, Thomas Wright devises to his two daughters Susan and Mary his warren, &c. in fee-simple: but if either of them died unmarried, or married without consent of his executors, she should have only an estate for life, and his son Robert should take the warren, and pay her or her executors 500l. They both died unmarried; but before the contingencies happened, Robert the son, in 1728, conveyed his interest in the premisses to his younger son George Wright, in consideration of natural affection. And now the heir of Thomas Wright the grandfather brought a bill against George Wright for the estate. Lord Hardwicke determined in favour of the defendant, merely upon the point of its being a good consideration; the assignability of such a contingent interest not being disputed. 2dly, It is also descendible: Gurnel and Wood (vide p. 225) (i); and therein Lord Chief Justice's argument was equally strong, that it was devisable as well as descendible. 3dly, In Adams and Buxton, Chancery, 16th July, 1754, such a contingent interest held to be in fact devisable. This was a devise of an estate to the testator's daughter, and if his son was minded to have it, he should pay her 2507. and take it. Testator died in 1724. The son had frequently offered to redeem in his lifetime; but the daughter desired he would not, till she married, which he agreed to. In 1751 the daughter died unmarried, and bequeathed all her estate to A. The son died in 1753, and devised all his estate to B. And now B. claimed to have the power of redeeming A.'s estate on payment of the 2507. Lord Hardwicke decreed, that B. should have the benefit of the clause in the original will. Objected, that this case was determined merely on the special circumstances of the son's having kept alive the right of redemption, by his frequent offers to his sister, and *the subsequent agreement between them. But the [ *254 ] (g) 1 Atk. 2. (h) 1 Ves. Sen. 409. (i) See also Fearne C. R. 552 et seq. (8th ed.) |