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of gift, gave her son Walter part of the yard to build a house upon. By feoffment, 8th November, 1763, in consideration of natural affection and 10/., she granted the residue of the premisses to her son Edward, to the uses following; viz. As to two chambers, to the use of herself for life sans waste, remainder to Edward in fee; and as to the residue to the use of Edward in fee: and Edward covenanted to keep the whole in repair. The pauper continued to dwell in her own part of the house, till she applied for relief; and being told, that she could not be removed to Dunchurch, while she lived on her own freehold, she went out of her house for a little time, and went to her daughter's house in the same parish, and set her own chambers to her son for 6d. a year; and was relieved at her daughter's house by the parish officers about a week, and was then removed."

Lord Mansfield, C. J.—The whole turns on the single point, whether this was a purchase for 30/. . [There is] no room for the presumption that it came by descent, for the contrary is found. There was no fraud in removing from her house. It was necessary to be done, else she could have had no relief (»): she must have sold her freehold. As for the Case of All Saints and Bengoe, which was cited to shew that money afterwards expended shall be reckoned as part of the purchase, no determination was ever had thereon. And I cannot conceive such an interpretation can be put on the statute. If subsequent events, and money afterwards laid out, are to be taken in, all the uncertainty would ensue which was intended to be re*medied. Yet no doubt but the payment of a fine or money borrowed upon mortgage is part of the purchase-money (o).

Wilmot, J.—A joint purchase is a purchase of the entirety to the husband and wife. We must not enter upon questions of real value. The only touchstone is, was 30/. bond fide paid? Subsequent improvements can have no retrospective operation. As long as she continued in her chamber, the parish need not relieve her. Therefore she very properly went out of it. And undoubtedly she might be removed from the parish, not residing in the house which was her own (jj).

Yates, J., and Aston, J., of the same opinion.

Orders confirmed.

(«) Ante., 433, n.

(o) Ante, 435, n. (rf).

(/)) Lord Kenyan observed, upon this part of Mr. J. Wilmot's judgment, that it being a purchase under 301., the act of the 9 G. 1, c. 7, intervened, which provides that the purchaser shall continue irremoveable no longer than while he shall inhabit in such estate; in R. v. Houghton-le-Spring, 1 East, 250. The learned reporter also, in a note, observes of the abstract in the margin—" Whether this were written by the learned Judge himself does not appear. The work was published by his executors;

but see the preface, p. 38;" Ibid. n. (c). In that case it was decided that a pauper having a freehold, which he had not acquired by purchase, in the popular acceptation of that word (in that case it came to him by descent), will gain a settlement by forty days' residence either upon his own property, though then let to a tenant, by permission of such tenant, or by a like residence in any other part of the same parish; Id. 247; S. P. K. v. Staptegrove, 2 B. & A. 527. See also R. ▼. Stmfield, Burr. Sett. Ca. 205, and Over-Norton v. Salford, ante, 433.

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Ilmington V. Mickleton.

S. C. Burr. Sett. Ca. 566.

ELIZABETH EVANS, widow, was removed from Mickle- Husband of a ton to Umington. On appeal, the Sessions confirmed the woman, who, order, stating, "That Theophilus Evans, being settled in II- phased for less mington, about 1733 married said Elizabeth (then Elizabeth than 30/., gains Stanley), who, by indenture 25 March, 1724, had purchased a a settlement by * leasehold tenement in Mickleton, for the remainder of a term TMnadrrth"n com'of 1000 years, at the price of 61., and resided thereon nine municates that years. After the intermarriage, the husband and wife resided settlement to his thereon sixteen years, when said Theophilus died, leaving said r" * ego -1 Elizabeth his widow, who continued to reside there till Christ- "■ mas, 1765, when she sold the same for 61.

Et per tot. Cur. (on the authority of Kentisbury and Marwood (a), Hil. 29 Geo. 2). This was a settlement to the husband by his intermarriage (b), and from him derived to his widow; though, upon the statute 9 Geo. 1, [c. 7], she gained no settlement by her purchase when originally made. And

'The orders were reversed (c).

(a) Burr. S. C. 386, Say. R. 268, & C, was communicated to the widow. "For

in which case the Court were of opinion, generally speaking in the cose of a pur

that 9 G. 1, does not extend to devises, chase, if the value be under 30/. no

or gifts or other methods of acquisition, settlement can be gained by virtue of it;

but is confined to purchases for money- that is where it comes to the party by his

considerations under 30/. See It. v. own act: but if it comes to him by opera

Brungwyn, 2 Bott. 637. tion of law the value is not material;"

{b, See R. v. Offchurch, 3 T. R. 114. Per Lord Kenyan, in ft. v. Edington,

(c) Inasmuch as the husband acquired 1 East, 288. See ft. v. Tarrant Launces

the estate by marriage and not by pur- ton, 3 East, 226, and Dmiclmreh T. South

chase in its ordinary meaning, i. e. by buy- Kilworth, ante, 596. ing; and the settlement of the husband

Simon ». Metivier or Motivos.

S. C. 3 Burr. 1921; BuU. N. P. 280.

CvASE for not taking away certain drugs to the value of 110/., Sales by auction, which were bought by the defendant at an auction; and having wherethe buyer since sunk in their value, he refused to take them, and they name^'good were resold at an under price; and this action was brought to within the starecover the difference. It appeared on evidence, that, by the 5"® °f {'lad\ terms of the sale, if 6d. was not tendered by the buyer, the statute'extends goods might be put up again and resold: That no 6d. was paid, to sales by aucbut that the auctioneer took down the price, and buyer's name ,ionin writing; and that after the day of bidding, and before the day of payment, the goods were weighed off to a servant of the defendant. The jury found a verdict for the plaintiff.

Simon Metivier.

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Stowe and Davenport moved for a new trial: because the sale was void by the statute of frauds (d), being above the value of 10/., and no earnest given, or note or memorandum signed by the party: and because there was no mutuality in the contract; for, as no 6d. was paid, the seller was not bound by it, and therefore not the buyer. The plaintiff might, and actually did, resell the goods according to the conditions of the sale. [ *600 ] * Norton and Wallace shewed for cause, that the conditions of sale, and the auctioneer's taking down the name of the buyer and price, are equivalent to a note in writing. That the auctioneer was agent to the buyer pro tempore; that his giving in his name was an authority to the auctioneer to set down the contract. That the not paying the 6rf. was the defendant's own laches, of which he shall take no advantage. That the intent of the statute of frauds was, to suppress private fraudulent contracts supported by perjury. No such inconvenience in sales by auction, which are transacted in the face of such numbers, that a man cannot, by false evidence, be made a purchasor whether he will or not. That the terms and conditions of the sale, when any one bids, are the term* of the bidder as well as the seller. The buyer thereby accedes to the terms proposed, and could bring an action upon them, if not performed.

Lord Mansfield, C. J.—The question is singly upon the statute of frauds, whether the contract is void by the provisions of that positive law. The object of the Legislature in that statute was a wise one; and what the Legislature meant, is the rule both at law and equity; for, in this case, both are the same. The key to the construction of the act is the intent of the Legislature; and therefore many cases, though seemingly within the letter, have been let out of it; more instances have indeed occurred in Courts of equity than of law, but the rule is in both the same. For instance, where a man admits the contract to have been made, it is out of the statute; for here there can be no perjury. Again; no advantage shall be taken of this statute to protect the fraud of another. Therefore, if the contract is executed, it is never set aside. And there are many other general rules by way of exception to the statute.

There are two lights in which the present case may be considered. 1st, Whether sales by auction are within the statute. [ *601 ] *They certainly existed in England, and in all other countries, at the date of this statute. The auctioneer is a third person, who is, to many intents, the agent of both parties. The solemnity of that kind of sale precludes all perjury as to the fact itself of sale. The contract is executed when the hammer is knocked down. I remember a case where some sugars were bought at an auction, and afterwards consumed by fire in the

Exceptions to the statute of frauds.

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auction warehouse, and the loss fell upon the buyer (e). The S'"0" circumstance of weighing off is similar to this, and very mate- Metwier.

rial in the present case. And, according to the inclination of' .'

my present opinion, auctions in general are not within the statute: But this is not necessary to be now determined, for, if they are within it,—2d, The requisites of the statute are well complied with. Every bidding is an accession to the conditions of sale. The name is put down by the buyer's authority. No latitude is left to fraud and perjury from the loose memory of witnesses.

Wilmot, J.—It may be a great question, whether sales by auction are within the statute. They were certainly not meant by the act, which was to extend only to the mischiefs created by private and clandestine sales. Had the statute of frauds been always carried into execution according to the letter, it would have done ten times more mischief than it has done good, by protecting, rather than by preventing, frauds. I therefore incline to think sales by auction openly transacted before 500 people are not within the statute. But the present agreement is strictly within the restrictions of the act. As to the objection for want of mutuality, that power of re-selling was optional in the seller, if he pleased to require the earnest, and it was denied. And the meaning clearly was, that, upon refusal, goods may be instantly put up again. Not being asked, the contract clearly bound the seller without it, and therefore shall bind the buyer. The weighing it afterwards is a very corroborating circumstance. I remember the case of the sale of some balsam, which was weighed and put into a pot of the seller, * instead of a pitcher which the buyer had brought, and [ * 602 ] left at the seller's shop. This was held a sufficient delivery to bind the contract.

Yates, J.—I much doubt whether the contract was within the statute of frauds. If it was, I am clear that the requisites of the statute were duly observed. Where Sir Thomas Osborne bespoke, a chariot (_/"), that being in its nature not deliverable immediately, it was held not within the statute; because not capable of all the requisites of the statute. I look upon this contract as executory in its nature, and being to be executed within a year, is sd far not within the statute (g).

Aston, J.—I think the terms of the sale and the requisites of the statute were fully complied with, by giving in his name as a purchasor, which is better than the sixpence earnest.

Rule nisi, for new trial, discharged (A).

(e) S. P. where goods sold by auction as to contracts to be performed within a

were consumed by fire in the King's ware- year.

house; Hindev. Whitchouse, infra, n. (A); (A) On this case Lord Ellenborough ob

or a factor's, Phillimore v. Barry, Ibid. served, "that the only part of it which

(/) Towers v. Osborne, 1 Str. 506; he meant to question, though it was un

Cluyton v. Andrews, 4 Burr. 2101; Groves necessary then to decide upon it, was the

v. Buck, 3 M. & S. 178, ace. opinion thrown out, that auctions were not

it-) But see Rondeau v. Wyatt, 2 H. within the statute, of which he should re

Bla. 63 j Cooper v. Els ton, 7 1. It. 14, serve his approbation for future considera

contra. See Fenian v. Emitters, ante, 353, tion. But as to the other point there de

Simon

v.

Metivier.

rided, that supposing tales by auctioneers
or brokers to be within the 17th sect of
the statute, the auctioneer or broker must
be taken to be the agent of both parties;
the practice had become so settled since
the decision of that case, that it would be
dangerous to shake it, and it was not his
intention to question it; Hinde v. White-
house, 7 East, 558; S. P. Phillimore v.
Barry, 1 Camp. 513. So if the sale be of
an interest in lands within the 4th sect.;
Emmet sou v. Heelis, 2 Taunt 38; White
v. Proctor, 4 Taunt 209; per Ld. Eldon,
C, in Coles v. Trecothick, 9 Ves. J. 249.
But in llindc, T. Whitehouse, it appeared,
that the catalogue of the articles, and the
conditions of sale were contained in two
separate papers, neither connected exter-
nally nor internally by any relation of one

to the other, and therefore that the auctioneer's writing the name of the highest bidder on the catalogue, was not a sufficient compliance with the statute, so as to make the contract binding: but that the acceptance by the buyer of samples, which by the terms of the sale were treated as part of the entire bulk to be delivered, was such an acceptance of part as would satisfy the statute. In Phillimore v. Sorry, the auctioneer wrote the initials of the name of the buyer's agent opposite the lots purchased by him, and the principal recognized the purchase in a letter to the agent, and it was held, that the entry by the auctioneer, coupled with the letter, was a sufficient memorandum. See also 5amonds v. Ball, % T. R. 151.

The Kino V. Wingfield.

INDICTMENT for not repairing a road ratione tenura (t). The defendant had applied to the Court for leave to plead guilty, and submit to a small fine; on a certificate(k) that the road was repaired. This being denied, he pleaded not guilty, and the indictment went to trial, when the defendant was convicted; it appearing, that, at the time of the presentment and subsequent application to the Court, the road was out of repair, but was repaired before the trial. And now it was moved that the defendant might submit to a small fine, without payment of the prosecutor's costs, on the authority of the King and Cheshunt(t). But the Court, on the circumstances of the case, refused to set a small fine, unless the defendant paid the prosecutor's costs subsequent to the prior application (m). It was said, that the reason of not usually giving costs in these cases was, because the statute Will. 3 (n), directs the fine to go to the repair of the road: [ * 603 J * but the Court held, that this did not extend to repairs, ratione tenures,- the fine, in this case, being to be paid to the surveyor of the parish highways (o). •

Person indicted for not repairing roads ratione <«• nurte shall pay the costs of the prosecutor.

Fines for not repairing roads, to whom payable.

(i) This indictment must hare been removed by certiorari. As to roads repairable ratione tenurte, see 13 Geo. 3, c. 78, a. 23; It.v. Balme, 2 Cowp. 648; and as to roads repairable ratione tenurtt becoming turnpike roads, tee 13 G. 3, c 84, s. 62.

(*) 11. v. Afawbey, 6 T. R. 619.

fl) Ante, 295.

(w) By 13 G. 3, c. 78, s. 65, the Court, before whom any indictment or presentment shall be tried, may award costs to the prosecutor, if it shall appear that the defence was frivolous; or to the defendant, if it shall appear that the prosecution was vexatious. On an indictment removed by certiorari, the Court above has no power to award costs, but only the Judge at Nisi

Prim; R. v. Chadderton, 5 T. R. 272. But the Judge's certifying that the defence was trivolous, is a sufficient awarding; Rv. Clifton, 6 T. R. 344. The Sessions may enquire and determine who in fact are the prosecutors of an indictment tried before them; R. v. Commerill, 4 M. 4 S. 203; and see R. v. Incledon, 1 M.&S. 268; R. T. Taunton St. Mary, 3 If. 4. S. 463.

(») 3W. & M.c. 12, s.14.

(o) By 13 G. 3, c. 78, s. 47, no fine, issue, penalty or forfeiture for not repairing highways shall be returned into the Exchequer, &c, but shall be levied by and paid to such persons residing in or near the parish, &c, where the road shall lie, as the Court imposing the same shall order,

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