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Walpole St. Peter's

Thb Kins with his wife to his father at Walpole, maintaining himself and wife by his labour till Lady-day following; and then rented and occupied a cottage of 30*. a year at Walpole, but was never charged to or paid any parish rates; and there continued till Lady-day, 1768; after which he worked as a labourer, in different places, till December, 1768, when he was removed from [ *670 ] * Wisbech to Walpole; and never gained any settlement of his own.

To this order of removal it was objected, that his last legal settlement was with his father in Outwell, and that his enlisting was a separation from his father's family, according to the Cases of East and West Woodhey, Stra. 438; St. Mich. Norivich and St. Matthew, Ipswich, Stra. 831. That, by the mutiny act, the examination of any soldier (a) on oath shall be admitted at any time as evidence of his then last legal settlement. That being once separated or emancipated, he could not afterwards become part of his father's family, so as to change his derivative settlement, when his father changed his original one (b).

Rule to shew cause, and made absolute in the same Term, no cause being shewn.

(a) R. v. Clayton-le-moors, 5 T. R. 704; R. v. Warley, 6 T. R. 534; R. v. Warminster, 3 B. & A. 121.

(6) It appears from the report in Burr. Sett. Ca., that the pauper was about the age of nineteen when he enlisted. So, where the son of a Scotchman, being a minor, enlisted, his father not having then acquired a settlement, and did not return from serving abroad till after his father's death, the settlement of the father acquired after their separation was not communicated to him. Ld. Kenyan—" He had ceased to be a part of his father's family, and had put himself under the control and government of others;" R. v. Stanwix, 5 T. R. 670. But where a minor entered into the same militia, in which his father was serjeant, and lived with him, the latter'receiving his pay, and the son served till he was twenty-three years old, the settlement gained by the father during such time was communicated to him; for here the pauper continued to be part of his father's family; R. v. Woburn, 8 T. R. 479. And the rule is the same, whether the pauper voluntarily enlist, or be drawn for the militia; R. v. Hardwick, 5 B. & A. 176. So where the father of an apprentice to a certificate man found him in clothes, &c, and the latter occasionally visited him; and when the son was eighteen years old, the former acquired a new settlement, and the son returned to him after he was twenty-one, the son's settlement followed the new settlement of his father. Per Bayley, J.,—" Unless he gains a settlement by his service, his domicile continues to be his father's house, and he is liable to be removed thither at any time.

If indeed he had withdrawn himself from his father's family after twenty-one, no doubt it would be an emancipation from that peiiod. But a separation, whilst under twenty-one, does not produce that effect, unless a subsequent settlement be gained j" R. v. Huggate, 2 B. & A. 582. In these cases the child did not return till after twenty-one; but the rule to be extracted from the cases is this; "if the child be separated from the parents, and without marrying or obtaining any settlement for himself return to them again during the age of pupilage, he is to all intents a part of his father's family, and his settlement will vary with that of his father: but if, when that time arrives, when in estimation of law the child wants no further protection from the father, he is not for the purpose of a derivative settlement to be deemed part of that family;" Per Ld. Kenyon, in R. v. Roach, 6 f. R. 253; R. v. Hardwick, 11 East, 578, ace. "The rule of law is, that every new settlement acquired by the parent is communicated to the children so long as they remain members of his family. During the minority of the child, he will remain almost under any circumstances unetnancipated; but where the new settlement is acquired by the parent after the child has attained twenty-one, it will not be communicated unless in fact the child continues part of the family;" per Abbott, C. J., 5 B. Sc A. 178. The different modes of emancipation are enumerated by Ld. Kenyon, in R. v. Witton-am-Tuambrookes, 3 T. R. 355. And see R. v. Uckfield, 5 M. & S. 214; R. v. Bleasby, 3 B. & A. 377, and 54 G. 8, c. 170, s. 2, 3.

POCHIN V. PAWLEY.

ACTION of assumpsit against the surveyor of a turnpike road by a farmer, employed by order of the commissioners to repair the road. At Leicester Assizes, Aston, J., was of opinion, that there was no evidence of any contract with the surveyor personally and the plaintiff; but that the contract was made with the commissioners, and that the surveyor was only their servant or messenger: and therefore he would have nonsuited the plaintiff, but he refused to be nonsuited, and a jury of farmers gave a verdict for the plaintiff. And now, on a motion for a new trial, the Court was unanimously of opinion with Mr. J. Aston; and, though they held, that the commissioners could not be personally sued, being too numerous, yet their treasurer might (c). And, as the plaintiff had refused to be nonsuited contrary to the opinion of the Judge, they granted the new trial without costs (d).

In like manner, as where a plaintiff submits to a nonsuit, in compliance with the erroneous opinion of a Judge, the nonsuit shall be set aside without costs (e).

(c) This is a false report, and is so reported, to give an ostensible hut false reason for setting aside the verdict.—MSS. Serj. Hill, who refers to Horsley v. Bell, Ambl. 770 (1 Bro. C. C. 101, S. C. in not.), where it is said, that in the principal case it was held, that the action must be against the commissioners: also to 1 Eq. Ca. Abr. 24 (D) (Meriel v. fVymondsoll, Hardr. 205, S. C), Id. 308 (B). See also Eaton v. Bell, 5 B. & A. 34; 3 G. 4, c. 126, s. 74.

(d) Where a verdict was obtained by a trick, it was set aside without costs; Anderson v. George, 1 Burr. 352. So a verdict obtained by surprise was set aside without costs, in Edie v. E. I. Comp., ante, 298; Gagnier v. Stonehouie, Tidd's Pr. 921, S. P. (ed. 1821).

(e) S. P. ButcaU v. Hogg, 3 Wils. 146, and a nonsuit was set aside without costs in Rice v. Shute, post, 698; Rackam v. Jessup, 3 Wils. 338.

Surveyor of turnpike roads not personally liable to answer the labourers; but the commissioners or their treasurer.

Where plaintiff
refuses to be
nonsuit, con-
trary to the
opinion of the
Judge; new
trial (if granted)
shall be without
costs.

If he submits to
an erroneous
nonsuit, it shall
be set aside
without costs.

Bidmead v. Gale.

8. C. 4 Burr. 2432.

COVENANT for 251. due on articles, whereby the plaintiff and defendant mutually covenanted to run each a horse, and that the loser should pay the winner 251. play or pay: and that, at all events, the defendant should pay the plaintiff 51. before such a day. The breach assigned was, that the defendant did not run his horse or pay the money. Verdict for the plaintiff at Gloucester Assizes.

Hall and Price moved in arrest of judgment, that this, being a match for less than 50/., was contrary to law, and that horseracing is within the statute of gaming; Stra. 1159(J").

Ashhurst and Selwin, contra. That they are not within the statute of gaming; Lord Raym. 1366. That stat. 18 Geo. 2 (g),

(/) Goodburn v. Mar ley; Clayton v. 707, n. This statute is confined to bond

Jennings, post, 706, ace. fide horse-racing, and therefore does not

(g) Or rather 13 G. 2, c. 19—see post, legalize a wager to be won by a perform

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Bidmead allows by implication horse-racing for 50/. That, by a manu"• script report of the case in Stra. 1159, the Court took a dis

< ^_I ■ tinction between horse-racing and betting thereat. That, at

Newmarket, 25/. on a side is held to be 50/., there being a difference of 50/. between winning and losing: and this is the case of all subscription plates. If ten men had subscribed 51. each, or five men 10/., it would be a plate for 50/. If the 25/. a side had been called a purse of 50/., or laid out in a plate, it would certainly have been good.

Price, in reply, observed, that this was but a running for 45/. even by the Newmarket law; for, according to the articles, the defendant was to return 51. to the plaintiff: so that the plaintiff subscribed but 20/. and the defendant 251. (But quaere, as the defendant was at all events to pay the plaintiff 51., whether this was not a subscription of 30/. by the defendant, and 20/. by the plaintiff?)

The Court took time to consider, and afterwards gave judgment for the plaintiff, because two sums of 25/. make 50/.

ance on the road in a post chaise; Ximenes road in less time than two; Whaley v.
v. Jaques, 6 T. R. 499: or that one horse Pajoi, 2 Bos. & P. 51.
shall perform a certain distance on the high

[ 672 ] Perrin v. Blake.

S. C. 4 Burr. 2579.

"afJdevi'^'to ACTION of trespass: Special verdict (A). J.V'foMife,0 William Williams, by his last will, after giving portions to remainder to his three daughters, disposes of his "temporal estate in mantrustees during « ner following: It is my intent and meaning, that none of my remainder to the " children should sell or dispose of my estate for longer term heirs of the body "than his life: and, to that intent, I give, devise, and beo(.3' Wr'' ',-/" "queath, all the rest and residue of my estate to my son John therebeTng"' "Williams, and any son my wife may be ensient of at my words of restric- "death, for and during the term of their natural lives; the retion that J. w. "mainder to my brother-in-law Isaac Gale and his heirs, for an7ionnger than " and during the natural lives of my said sons, John Williams his own life, "and the said infant; the remainder to the heirs of the bodies and the estate "0f my said sons, John Williams and the said infant, lawfully to'timt intent. "hegotten or to be begotten; the remainder to my daughters [But that judg- "for and during the term of their natural lives, equally to be ment afterwards " divided between them; the remainder to my said brother-in&acc!'dwhere"it " 'aw Isaac Gale during the natural lives of my said daughters was held to be "respectively; the remainder to the heirs of the bodies of my an estate tail: "said daughters equally to be divided between them. And I "pinion^Mteen "do declare 'lt to be mv wiU ^d pleasure, that the share or

confirmed by all

subsequent au- (a) Not so: for the question arose upon ed, on the ground that the son took

thoritiesj. a demurrer to a replication. A feigned an estate tail; and to this the defendant

action of trespass was brought, to which demurred; 1 Doug. 343, n'. 3, where the

the defendant pleaded the will uf W. W. circumstances of this case are detailed. The plaintiff replied a recovery suffer

Pehrin

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part of any of ray said daughters, that shall happen to die, shall immediately vest in the heirs of her body in manner aforesaid." William Williams died, 4th February, 1723, leaving issue one son, named John Williams, and three daughters, Bonneta, Hannah, and Anne, and his wife not ensient. John Williams suffered a recovery, and declared the uses to himself and his heirs.

N. B. This was a case from Jamaica, and in fact, instead of a recovery, the supposed estate tail of John Williams was endeavoured to be barred, by a lease and release enrolled, according to the local law of that country. It came on be*fore a [ * 673 ] committee of the Privy Council, who directed a case to be stated for the opinion of the Court of King's Bench, who refused to receive it in that shape. And therefore, a feigned action was brought, and the case above stated was by consent reserved at the trial.

It was argued in this, and Trinity Terms; the question being merely this, Whether John Williams took by this will an estate for life or in tail. And in Michaelmas Term following, it was adjudged by Lord Mansfield, C. J., Aston and WilLes, Js., that he took only an estate for life: Yates, J., contra, that he took an estate tail. But I was not present, when the judgment of the Court was delivered (*).

(i) A full statement of this celebrated case is to he found in 1 Harg. Law Tract;, -190, which also contain Mr. J. BlackStone's very elaborate and valuable judgment This was a case which gave rise to much discussion at the time, and the judgment of the Court of K. B. seems to have been generally disapproved of: and indeed it was reversed, 1st February, 1772, in the Exchequer Chamber, by six out of the eight judges there, viz. by Parker, C. B., Adams, B., Gould, J., Parrot, B., Blackstone, )., and Nares, J., against De Grey, C.I, andSmythe, B. Mr. Fearne says, tliat that reversal restored tile venerable uniform train of preceding judgments and opinions upon the same point to its former authority. An appeal was then brought in the House of Lords, but the dispute was eventually compromised between the parties without coming to a decision there. So that it was held to be an estate tail by seven judges, viz. Yates, Parker, Adams, Gould, Perrot, Blackstone and If ares, and to be an estate for life by five, viz., Lord Mansfield, Aston, Witlts, De Grey and Smythe, see 1 Doug. 342. Mr. Fearne also disapproves of the decision in K. B., and has treated the subject so elaborately and at such great length, in his distinguished essay on Contingent Remainders, p. 156 et seq., that it would be in vain to attempt to do more than refer the reader to that learned work. However, it may be remarked, that the ground of the decision of the minority of the judges was the indention of the testator; and the sole difference of opinion was upon this point, whe

VOL. I. N

thcr such intention or supposed intention
should be suffered to supersede an ancient
and established rule of law, which is com-
monly called "the rule in Shelley's case;"
as to which see Hayes v. Foorde, post, 698.
Mr. Fearne observes upon this head,
"Why were not the authorities of Papil-
lon v. Voice, 2 P. Wms. 471; Coulson v.
Coulson, 2Stra. 1125, 2 Atk. 246; Sayer
v. Masterman, Ambl. 344, and Wright v.
Pearson, Ambl. 358, 1 Eden, 119, in
every one of which there was a limitation
to trustees to support contingent remain-
ders, sufficient to rule the case of Perrin
v. Blake. Indeed, upon examining the
matter, the limitation to trustees to sup-
port contingent remainders, seems to'set
the force of the two arguments upon the
intention, and upon the testator's being
inops consilii, in direct opposition to each
other. For if we suppose the testator ac-
quainted with the necessity, or use, of li-
miting an estate to trustees to support con-
tingent remainders, it scarcely seems rea-
sonable to suppose him unacquainted with
the legal nature and force of a limitation
to the heirs of the body, after a preceding
estate for life; and then, as we cannot
say he is inops consilii, there exists no pre-
tence for construing his words otherwise
than according to their legal import and
operation. On the other hand, if we ad-
mit he did, not understand the use or inten-
tion of the limitation to trustees to support,
&c but only used it, because he had seen it
used in some other will or settlement;
then no particular intention can be infer-
red from his inserting that clause. But

/

Ferris

Blake.

admitting that those who argue against the
strict observance of the rule I have been
speaking of, should chance to have the in-
tention of the testator on their side, it re-
mains for them to consider, whether a
rule of law, inviolably observed for more
than three hundred years past, can ever
be a decent sacrifice to the presumptive con-
struction of an undetermined or illiterate
testator's intention." He also refers to
the following cases decided subsequent to
that of Perrin v. Blake, viz. Hayes v.
Foorde, post, 698; Hodgson V.Ambrose,
1 Doug. 337; Thong v. Bedford, 1 Bro.

C. C. 313. See also Roe dem. Thong v. Bedford, 4 M. & S. 362, a case arising upon the same will. Also Jones v. Morgan, 1 Bro. C. C. 206; Brouncker r. Bogot, 1 Mer. 271. It is hoped the reader will pardon the foregoing extract from Mr. Fearne's book, as it has been inserted under the impression, that it would be acceptable to those persons who might not have his invaluable work at hand. An abstract of Mr. J. Blackstone's judgment is to be found in 6 Cruise Dig. 335, 3rd ed.

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Hall V. Harding.

S. C. 4 Burr. 2426.

IN trespass the question was, whether one commoner can distrein the supernumerary cattle of another commoner, having a stinted common in point of number with relation to the quantity of land, viz. two sheep for every acre.

On demurrer and argument, Lord Mansfield, C. J., delivered the opinion of the Court. It is contended by the plaintiff, that Harding (being only a commoner) could not distrein another commoner, but must have a writ of admeasurement or an action on the case:—For the defendant, that this being a stinted common, the supernumerary cattle are as the cattle of a stranger. To support which the Year-book, 46 Ed. 3, 12, is cited; but from thence nothing can be collected conclusively, as is observed, in 2 Lutw. 1240. Another case cited was, Yelv. 129, Cro. Jac. 208(*). But, in 2 Roll. Abr. 267, the case is otherwise reported, and what was done does not appear, therefore no argument can be conclusively drawn from thence. Trulock and White, I Roll. Abr. 405, 6, was also cited to shew that the tenant might *distrein the cattle of the lord. But there by the custom the land was to lie fresh every second year, and therefore the lord had no colour of right to put in any cattle. But, Where there is no such manifest exclusion, a commoner cannot distrein the lord's cattle; Hoddesdon and Grevil, Yelv. 104. Where there is any colour of right the lord cannot be a trespasser, neither can he be a stranger in his own soil(/). Dixon and James, 2 Lutw. 1238, Freem. 273, was also relied upon, on both sides.

It is unnecessary to give any opinion on the power of a commoner to distrein, where the number of the cattle is certain in itself, and has no relation to the land. The latter is the case here; it has relation to the land. Two sheep are allowed for every acre. This is the material distinction, upon which the present case will turn. There is no proof necessary, that twenty sheep are more than ten. But in the latter part of the present case a medium is necessary to prove, that the cattle are

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