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Wheeler V. Cooper.
J.RESPASS for taking some pewter by distress. On a spe- inhabitants of a cial justification, and issue thereon, a verdict was found for the parish, into plaintiff on the following case reserved. The trustees of a ^^"turn! turnpike road in Derbyshire had by virtue of their powers al- p^kTu-Jtee"TM tered a road, which ran through the parish of Middleton, and not bound to do carried it through part of the parish of Hyam; and the defend- £££joA ant, the officer of the trustees, had distrained the plaintiff's reon' goods, he being an inhabitant of Hyam, for not doing statute work (p) on the said new made road.
Lord Mansfield, C. J., held that the roads, being by the act to be repaired in the same manner and by the same persons as were formerly used to repair them, the inhabitants of Hyam could not be obliged to repair the new made road; but whether the inhabitants of Middleton should be bound to repair this, as the old road still subsisted, he gave no opinion; but rather inclined that they should not (q). Wilmot, Yates, and Aston, Js., of the same opinion.
Postea to the plaintiff.
O) 4 (J. 4, c. 95, s. 80, tt teq. (q) This case seems to have turned upon the construction of a particular act of Parliament. But in the following case it was held, that where under a local act a road had been turned and carried through the township of N., that township was liable to repair it, although the act directed, that the roads should be repaired with the money arising from the tolls; for the tolls were held to be only an auxiliary fund in the hands of the trustees, and the township, being bound by prescription to repair all roads within the same, was primarily liable; but it might obtain relief against the trustees under 13 G. 3, c. 84, s. 33, (now repealed by 3 G. 4, c. 126). There Abbott, 0. J., said, "By the general rule of law, the inhabitants of any district, who were liable to the repair of all the roads there, previously to the introduction of a new highway, are also liable to the repair of that highway;" It, v. Netherthong, 2 B. & A. 179. It also seems, that the inhabitants of Middleton were not bound to repair, unless it could have been shewn, that there was a consideration for their repairing. For on an indictment against the inhabitants of A. for non-repair of a high way lying therein, a plea, that the inhabitants of B. had immemorially repaired and of right ought to repair, was held bad for not
stating a consideration. Ld. Ellenborough; "The principle of law I take to be clear, that the inhabitants of a parish are liable of common right to repair the highways lying within it, unless they can shew that this burden is cast upon some other person, under an obligation equally durable with that which would have bound the parish; which obligation must arise in respect of some consideration of a nature as durable as the burden cast upon them." Holroyd, J.; "When the highway lies out of the parish, a consideration must be shewn;" It. v. St. Oiks, 5 M. & S. 260, where most of the cases on this point are referred to: see also/f. v. Machynlleth, 2 B. & C. 166. Ld. Ilnrdwicke, ('., was of opinion, that where a new road has been once made by an individual, under a writ of ad quod damnum, in the same parish as the old road stopped up, the parishioners are bound to repair it: but if in another parish, the person suing out the writ and his heirs ought to repair it; inasmuch as that parish would have a new burden thrown upon them, and no recompense by the former road being taken away: in Ex parte feanor, 3 Atk. 771. See further as to highways, R. v. Js. of Wilts, ante, 467; R. v. Wingfield, ante, 602; Pochin v. Pauley, post, 670; and 1 Hawk. P. C. c. 76.
Renting 10/. a year, and immediately letting off the greater part to an under tenant, and lesidingon the rest, gives a settlement.
[ *604< ]
The Kino ». Llanverras.
S. C. Burr. Sett. Ca. 571.
PAUPER was sent by order to Llanverras, and Sessions confirmed the order, stating "That in 1764, Evan Hughes, the father of the pauper, being settled in the parish of Northop, rented in Llanverras a tenement of 10/. per annum, *and paid rent for the same, and lived for forty days in part of it, of the value of 40*. per annum; and immediately after the taking let the rest to under-tenants, and never lived thereon a moment."
Kenyon and Dunning argued, that this was no settlement at Llanverras; because the intent of the Legislature was, that the pauper should be of ability to stock and hold a tenement of 10/. per annum; and, if this devise be permitted, a man may rent a tenement of 12/. per annum; and, by reserving the value of one shilling to himself, and his lessees doing the same in succession, give a settlement to forty people.
But per Cur. In case of a gross fraud, the Sessions would find it so, and the settlement would be void. But no fraud being found, upon the law of the case there is no doubt but that Hughes was the tenant and liable to the rent, and had credit for the whole, which is what the act meant to require. And therefore he is as much settled, as if he had rented a tenement of 10/. a year, and let lodgings.
Orders confirmed (r).
(r) This case was cited as authority by Aston, J., in It. v. Nevmham, Burr. Sett. Ca. 756; in which case it was decided, that if a man take a tenement of more than 10/. per ami., he will gain a settlement, although he afterwards occupy it jointly with another person; It. v. Hooe, 4 East, 362, ace. But where a pauper rented and occupied a tenement of 8 guineas per ann. in B., and let his freehold estate in A. for 50s. per ann., he did not gain a settlement; R. v. South Bemfieet, 1 M. & S. 154. There the tenement and freehold were in different parishes. Yet a pauper did not acquire a settlement by occupying his own freehold estate of 30*. per ann., (purchased by him for 10/.) and other lands as tenant at 9/. 10*. per ann., both in the same parish; R. vi St. John, Glastonbury, 1 B. & A. 481. And in order to gain a settlement by rent ing a tenement, he must have resided upon some part of it; R. v. liar dwell, 2 B. & C. 161. But now, by 59 G. 3, c. 50, it is enacted, that after July 2d, 1819, no person shall acquire a settlement by renting a tenement, unless such tenement shall con
sist of a house or building within such parish, being a separate and distinct dwellinghouse or building, or of land within such parish, or of both, bond fide hired at and for the sum of 10/. a year at the least for the term of one whole year; nor unless such house or building shall be held and such land occupied and the rent for the same actually paid for one whole year by the person hiring; nor unless the whole of such land shall be situate within the same parish as the house wherein the person hiring shall dwell. See R. v. St. Mary-le-bont, 4 B. & A. 681. If a pauper (since 59 G. 3,) hire a house from one person and a garden from another at different times, and underlet one of the rooms, still he will gain a settlement under this act, having held them together and paid rent for them for one whole year: for he continued tenant of the whole house, notwithstanding the underletting; R. v. North Collinglmm, 1 B. & C. 578; 2 D. & R. 743. By 6 Geo. 4, c. 57, s. 2, it is now necessary to prove the actual value of the tenement.
Roe on the demise of Noden V. Griffiths.
S. C. 4 Burr. 1952.
i.N ejectment, the case was; In 1724, a copyhold estate was surrendered to the uses of a marriage settlement, which left in the surrenderor the reversion in fee, and a power to devise the same by will. Afterwards a surrender was made by him to the use of his will, and a will made accordingly. In 1751, the surrenderor was called upon by the steward to be admitted to some of the particular estates, created by the original surrender in 1724, which was done. Qu. Whether this admittance operated as a revocation of the prior will?
And by Lord Mansfield, C. J., and the Court.—Where circumstances have been determined to be revocations of wills upon subtile artificial reasons, and not upon the intent of the testator, those cases must be adhered to, when the same circumstances come again in question and not otherwise. There is no case, in which the present circumstances have been deemed a revocation; and as the testator's intention does not appear to have been to revoke his will but rather the contrary, being compelled to be admitted and not a volunteer, it is therefore no revocation. Besides, we may consider this whole transaction as one and the same; and then the admittance in 1751 will relate to the surrender in 1724, and be prior to the will. This was the principal ground which the Court went upon in Selwin and Seltcin(b), M. 1 Geo. 3. Mr. Justice Dennison thought it against the practice of the * Court, and therefore improper to give reasons when we certify into Chancery; otherwise, I was prepared to have shewn, with the concurrence of all my brethren, 1st. That in all contingent, springing and executory uses, where the person who is to take is certain, so that the same may be descendible, they are also devisable: they are convertible terms. But the great and manly ground upon which the Court went in that case was, 2. That the deed, recovery, and all the whole transaction was to be considered as one conveyance.
(a) See Thnutout v. Cunningham, post, 1046.
(6) Ante, 222, 251, which see, and particularly n. (m), p. 254.
The King V. Justices of Derbyshire.
S. C. 4 Burr. 1991.
JVlOTION for a mandamus, to register (c) a certain tenement, Sessions is mcrcwhich was certified to the Quarter Sessions as a place set apart l¥ ministerial, as for the meeting of Protestant dissenters. . meeting house*
(c) Under 1 W. & M. c. 18, s. 19, the Toleration Act; see further regulations by of T0ien52 G. 3, c 155.
Morton and Blackstone shewed for cause, 1st. That the parties certifying have not shewn under what denomination of Protestant dissenters they fall, so as to entitle themselves to the indulgence shewn by the Toleration Act, which only meant (vid. § 17) to give ease to tender consciences, when professing such principles as neither endanger the civil government, nor undermine the fundamental doctrines of the Christian religion. These people may be Arians or Socinians. Suppose them only Methodists (which was the fact J: As these do not dissent from the Church of England, but only pretend to observe her doctrine and discipline with greater purity than their neighbours, it may be a very serious question, how far they are the object* of the Toleration Act, and privileged to meet in conventicles. 2d. The parties applying are not of the neighbourhood, so as to be able to resort to it when recorded. Queen and Peach, Salk. 572(d), it was held, till 10 Ann. c. 2, that a dissenting minister, who had qualified in one county, could not officiate in another. More reasonable to require, that the persons certifying should be of the neighbourhood, who may bond fide use the meeting house when registered.—When registered, it acquires some privileges; as by 1 Geo. 1, c. 5, it is felony to begin to demolish it. May a person at any distance, and who is [ *607 ] no dissenter, * certify any tenement to the Sessions, and thereby give it those privileges? 3d. The persons certifying do not appear to have complied with the terms of the Toleration Act by taking the oaths and making the declaration: K. and Larwood, SaUc. 168, 4 Mod. 274, this required by the Court: And was complied with in Green and Pope, Lord Raym. 125.
But the Court was of opinion, that in registring and recording the certificate, the Justices were merely ministerial; and that after a meeting-house has been duly registered, still, if the persons resorting to it do not bring themselves within the Act of Toleration, 6uch registring will not protect them from the penalties of the law.
Rule for mandamus absolute (e).
Devise to the heir at law in tail with a proviso for taking the testator's name, is not a conditional limitation.
[Devise "to A. and the heirs male of his body,
Gulliver on demise of Corrie, alias Wykes, V. [Shuckburgh]
JhiJECTMENT on the several demises of the same person,
William Wykes, on the 15th August, 1736, by his will, duly executed, gave and disposed of his temporal estate (inter alia) in manner following. "Whereas, for want of issue male by my "now wife, the lands, &c, settled on her in jointure are li"mited to me and my heirs; therefore, in case I should leave
"no issue by my now wife, I give, devise and bequeath all my "mansion-house, &c. and estate at Haslebeach, from and after "my wife's interest therein, according to her settlement or this "my will, unto my loving sister Dorcas Wykes, for and during and the heirs] "her natural life; and from and after her decease, unto my jn«je°ftheu' "nephew Ambrose Saunders, and the heirs male of his body aJ| estate^uu.]' "lawfully begotten, and the heirs male of their bodies lawfully "begotten; and for want of such issue, to the heirs male of "the body of my sister Dorcas Wykes, and the heirs male of "their bodies lawfully begotten; and for want of such issue, "unto my wife and nephew's godson Ambrose Corrie, and the "heirs male of his body lawfully begotten, and the heirs male "of their bodies lawfully begotten; * remainder, to the heirs [ *608 1 "of the body of Ambrose Saunders, Dorcas Wykes, and Ro"bert Ekins successively; remainder, to my own right heirs '■' for ever. Provided always, and this devise is expressly "upon this condition: that, whenever it shall happen, that the "said mansion-house and estates, after my wife's decease, shall "descend or come unto any of the persons herein before named; "that the person or persons, to whom the same from time to "time shall descend and come, that he or they do and shall "then change their sirname, and take upon them and their "heirs the sirname of Wykes only, and not otherwise. And "I do declare further, that my several devises of my said "estates at Haslebeach are on this express condition, likewise, "that no person shall plough up or commit any waste on the "premisses, &c. by felling trees (unless for necessary repairs) "or otherwise; but shall forfeit the premisses and ground upon "which the trees shall be so fallen, or on which such waste "shall be committed, to the person who shall be next entitled "to the premisses, according to this my will." And then follows a devise of the places so wasted, to the person next in remainder, toties quoties. On 9th May, 1742, the testator died, leaving his sister the said Dorcas Wykes, and his nephew the said Ambrose Saunders, his heirs at law(t/"). Grace Wykes, the testator's widow, died 16th January, 1747, upon which Dorcas entered; and on her death, 26th December, 1756, Ambrose Saunders entered, but never changed the sirname of Saunders, or took the name of Wykes. But by lease and release, 8th and 9th February, 1759, and a common recovery suffered in pursuance thereof, he conveyed the said premisses to the use of himself in fee, and died 8th October, 1765; and the defendant Ashby entered thereon (as his heir at law). On 17th January, 1766, the lessor of the plaintiff made an actual entry on parcel of the premisses for a breach of the proviso, by Saunders not changing his sirname and taking the name of Wykes.—Qu. 1. Whether Ambrose Saunders had an estate for life, or in tail? 2. Whether, by his not complying with the proviso for changing his name, the estate was not out of him
(/) As co-parceners, Ambrose being the son of the testator's sister Sarah Wykes, who married Saunders.