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THE KING

V.

WALPOLE

with his wife to his father at Walpole, maintaining himself and wife by his labour till Lady-day following; and then rented and ST. PETER'S. Occupied a cottage of 30s. 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. Norwich 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.

(b) 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. Kenyon-" 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 appren tice 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 period. But a separation, whilst under twenty-one, does not produce that effect, unless a subsequent settlement be gained;" 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 T. R. 253; R. v. Hardwick, 11 East, 578, acc. 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 unemancipated; 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. & A. 178. The different modes of emancipation are enumerated by Ld. Kenyon, in R. v. Witton-cum-Twambrookes, 3 T. R. 355. And see R. v. Uckfield, 5 M. & S. 214; R. v. Bleasby, 3 B. & A. 377, and 54 G. 3, c. 170, s. 2, 3.

"The

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 but 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. Wymondsoll, 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. Stonehouse, Tidd's Pr. 921, S. P. (ed. 1821).

(e) S. P. Buscall 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 liable to answer the labourers; but the commistreasurer.

not personally

sioners or their

Where plaintiff refuses to be nonsuit, conopinion of the Judge; new trial (if granted) shall be without

trary to the

costs.
If he submits to

an erroneous

nonsuit, it shall be set aside without costs.

BIDMEAD V. GALE.

S. 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 57. 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 (ƒ).

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

(f) Goodburn v. Marley; Clayton v. Jennings, post, 706, acc.

(g) Or rather 13 G. 2, c. 19-see post,

707, n. This statute is confined to bond
fide horse-racing, and therefore does not
legalize a wager to be won by a perform-

[ 671 ]

A match for 257. a side is a running for 50% horse-race act.

within the

BIDMEAD

υ.

GALE.

allows by implication horse-racing for 50%. That, by a manuscript report of the case in Stra. 1159, the Court took a distinction between horse-racing and betting thereat. That, at Newmarket, 251. on a side is held to be 50l., there being a difference of 501. between winning and losing: and this is the case of all subscription plates. If ten men had subscribed 51. each, or five men 107., it would be a plate for 50l. If the 25l. 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 451. even by the Newmarket law; for, according to the articles, the defendant was to return 57. to the plaintiff: so that the plaintiff subscribed but 207. and the defendant 257. (But quære, as the defendant was at all events to pay the plaintiff 5l., whether this was not a subscription of 307. by the defendant, and 207. by the plaintiff?)

The Court took time to consider, and afterwards gave judgment for the plaintiff, because two sums of 25l. make 507.

ance on the road in a post chaise; Ximenes
v. Jaques, 6 T. R. 499: or that one horse
shall perform a certain distance on the high

road in less time than two; Whaley v. Pajot, 2 Bos. & P. 51.

[ 672 ]

PERRIN V. BLAKE.

S. C. 4 Burr. 2579.

Held in K. B. ACTION of trespass: Special verdict (h).

that a devise to J. W. for life, remainder to trustees during

remainder to the

heirs of the body of J. W., is an

estate for life, there being

words of restriction that J. W.

66

66

William Williams, by his last will, after giving portions to his three daughters, disposes of his "temporal estate in man"ner following: It is my intent and meaning, that none of my the life of J. W., children should sell or dispose of my estate for longer term "than his life: and, to that intent, I give, devise, and be"queath, all the rest and residue of my estate to my son John Williams, and any son my wife may be ensient of at my death, for and during the term of their natural lives; the re"mainder to my brother-in-law Isaac Gale and his heirs, for shall not sell for "and during the natural lives of said my sons, John Williams "and the said infant; the remainder to the heirs of the bodies "of my said sons, John Williams and the said infant, lawfully "begotten 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-inreversed in Cam. law Isaac Gale during the natural lives of my said daughters Scacc., where it respectively; the remainder to the heirs of the bodies of my "said daughters equally to be divided between them. And I "do declare it to be my will and pleasure, that the share or

any longer than
his own life,
and the estate
being devised
to that intent.

was held to be an estate tail: and the latter

opinion has been confirmed by all subsequent authorities].

66

(h) Not so: for the question arose upon a demurrer to a replication. A feigned action of trespass was brought, to which the defendant pleaded the will of W. W. The plaintiff replied a recovery suffer

ed, on the ground that the son took an estate tail; and to this the defendant demurred; 1 Doug. 343, n. 3, where the circumstances of this case are detailed.

PERRIN

v.

BLAKE.

part of any of my 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 before 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 be found in 1 Harg. Law Tracts, 490, which also contain Mr. J. BLACKSTONE'S very elaborate and valuable judg

ment.

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., Perrot, B., Blackstone, J., and Nares, J., against De Grey, C. J., and Smythe, B. Mr. Fearne says,

that that reversal restored the 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 Nares, and to be an estate for life by five, viz., Lord Mansfield, Aston, Willes, 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 intention of the testator; and the sole difference of opinion was upon this point, wheVOL. I.

ther such intention or supposed intention should be suffered to supersede an ancient and established rule of law, which is commonly 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 Papillon v. Voice, 2 P. Wms. 471; Coulson v. Coulson, 2 Stra. 1125, 2 Atk. 246; Sayer v. Masterman, Ambl. 344, and Wright v. Pearson, Ambk. 358, 1 Eden, 119, in every one of which there was a limitation to trustees to support contingent remainders, sufficient to rule the case of Perrin v. Blake. Indeed, upon examining the matter, the limitation to trustees to support 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 acquainted with the necessity, or use, of limiting an estate to trustees to support contingent remainders, it scarcely seems reasonable 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 pretence for construing his words otherwise than according to their legal import and operation. On the other hand, if we admit he did not understand the use or intention 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 inferred from his inserting that clause. But NN

PERRIN

v.

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
the same will.
upon
Also Jones v. Mor
gan, 1 Bro. C. C. 206; Brouncker v. Ba-
got, 1 Mer. 271. It is hoped the reader
will pardon the foregoing extract from Mr.
Fearne's book, as it has been inserted un-
der the impression, that it would be ac-
ceptable to those persons who might not
have his invaluable work at hand. An
abstract of Mr. J. BLACKSTONE's judg-
ment is to be found in 6 Cruise Dig. 355,
3rd ed.

HALL V. HARDING.

S. C. 4 Burr. 2426.

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

of number, one

commoner may

distrein the supernumerary cattle of another;

but not if an admeasurement is

necessary-as where the stint has relation to

the quantity of the commoner's land.

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 (k). 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, 1 Roll. Abr. 405, 6, was also cited to shew [ *674] 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

(k) Kentick v. Pargiter; Brownl. 187. S.C.

(7) See post, 818, & n. (4) ibid.

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