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The King v. Dawes.—THE KING v. Martin.
S. C. 4 Burr. 1962, 2022, 2120. Informations in THESE were motions for cross informations, in the nature of nature of quo, writs of quo warranto, for the office of burgess of Winchelsea. warranto denied
Lord MANSFIELD delivered the opinion of the Court.-after long acquiescence and There are two qualifications requisite to this office; resiother circum
dence, and payment of scot and lot. Dawes was elected 17th September, 1747 ; was not then resident, but was town-clerk; and, since his election, hired a house, and has resided, and paid scot and lot ever since. Two of the three informers concurred in his election. All three have since acted with him without any objection till within nine months past. He has served the offices of jurat and mayor. Many derivative rights depend on his election: Perhaps the existence of the borough. No good reason can be assigned for the present prosecution. The end of the constitution is answered by the subsequent residence. No public right is infringed, or new constitution formed by the continuance of Dawes in this office. Therefore upon these three grounds taken jointly, and not separately, 1. The behaviour and long acquiescence of the informers knowing the disqualification; 2. The motives of the informers for now moving it; and, 3. The probable consequences to the
borough of granting this information; we are all of opinion, [ *635 ] *that it would be contrary to the trust reposed in this Court
by the statute of Queen Anne for quickening the amotion of usurpers, to permit these informers to have the assistance of the Court in this case thus circumstanced. Martin was elected, 1 October, 1753. No objection then made, or ever since. It is objected now that, though resident, he did not then pay scot and lot. There are similar circumstances of acquiescence in the informer. Martin occupies a tenement of 107. per annum, and has a freehold besides. By a rate made in the middle of October, 1753, he was rated from the Easter preceding, and has been rated ever since. These are opposite applications; and, though one case is stronger than the other, yet both are strong enough, and the difference ought not to be nicely weighed.
Both rules discharged (a).
(a) See R. v. Lathorp, ante, 470, n. (t).
The King v. Tavistock.
S. C. Burr. Sett. Ca. 578. ROSAMOND Cock, his wife, and three children were re- Apprentice asmoved from Tavistock to Kelly. On appeal the Sessions re- signed to A. and verse the order, stating, that the pauper was bound apprentice with B. on con
going to live by the parish of Lamerton to Richard Rundle, with whom he dition to allow lived several years in that parish. Then Rundle assigned him A. a guinea to John Prout, of Milton Abbot, with whom he lived till twenty: and an half years old, when he offered his service to Thomas the first forty Mason, of Kelly; who, apprehending he was apprentice to days' residence Prout, sent to ask his consent for Cock to live with him, who replied, “ with all his heart, he might live with Mason or any “ one else, provided he performed his agreement with him," viz. to pay him a guinea a year. Upon which Mason took him, and he lived with him at Kelly during the remainder of his apprenticeship.
Thurlow, in support of the order of Sessions, argued, that there is no settlement in Kelly. An infant cannot consent to transfer his service, nor can it be done without his consent. *Nor can parish apprentices be transferred without the inter- [ *636 ] position of the justices (6).
Norton, on the same side, admitted, that though an apprentice cannot be legally assigned, yet if assigned in fact and he lives forty days with the assignee, he gains a settlement. Nay, that if the administratrix of the master, before administration granted, turns him over, he may gain a settlement by residence (c). Or that if the assignee of an apprentice assigns him to another, the service with the second assignee will give a settlement, because this is an implied consent of the first master; K. and Inhabitants of Clapham (d), 20 Geo. 2. But, here is no consent of Prout. The leave was conditional, and that condition was never agreed to by the apprentice, which amounts to the same as a refusal.
But per Cur.-There is no doubt but there was a general consent given by Prout. The guinea was not payable till the end of the year, and the settlement is gained in the first forty days(e).
Order of Sessions reversed.
(8) See R. v. Austrey, Burr. S. C. 441, and Ecclesal Bierlow v. Warslow, ante, 592. A parish apprenticeship cannot be dissolved without the consent of the parish officers, (the apprentice being a minor), even though his father consent; R. v. Langham, Cald. 126. But such assent of the parish officers is unnecessary after he comes of age; R. v. Harberton, 1 T. R. 139. It does not seem necessary to have the interposition of the magistrates.
(c) R. v. East Bridgeford, Burr. Sett. Ca. 133, 2 Stra. 1115. So the executrix, R. v. St. Paul's, Bedford, 6 T. R. 452. VOL. I.
But see ante, 555, n. (m).
(d) Burr: Sett. Ca. 266, 1 Wils. 158.
(e) A general consent is not sufficient,
Mayor of Norwich v. BERRY.
S. C. 4 Burr. 2109. An attorney is ACTION of debt by the Corporation of Norwich for 40s. on privileged from a by-law, for not serving the office of sheriff there, being duly serving corpora- o. tion offices,
pofas elected. The defendant pleads his privilege as a practising though resident attorney in the Common Pleas, and that, by the custom of that in the corpora- Court, no attorney ought to be drawn away to attend any other tion town.
office than in the said Court; that the sheriffs of Norwich, upon their admission, take an oath to be resident within their bailiwick; and that, before his election, he brought a writ of privilege, of which the Corporation had notice; and that therefore he refused to serve. The plaintiffs reply, that the defendant for twenty years past hath been, and still is, an inhabitant of Norwich, 100 miles from the Court of Common Pleas at Westminster: the defendant demurs, and plaintiffs
join in demurrer. [ *637 ] * For the defendant were cited, Cro. Car. 389, Prowse's
Case; Noy, 112; Cro. Car. 11; 2 Stra. 1143, Barnes, 42, Heaton's Case; 1 Ventr. 16, 29, Stone's Case; Officina Brev. 146, 166, 174; 1 Barnes, 29(f).
For the plaintiffs, Savil. 43; 6 Mod. 140, T. Jones, 46.
But the Court were unanimously of opinion, that the privilege of the Court of Common Pleas protected him, notwithstanding his residence at Norwich (g).
But, per Aston, J.-By rule of Court, A. D. 1654, no attorney, that has left off practice for a year, shall be privileged (h).
Judgment for the defendant.
THE KING v. EDWARDS and SYMONDS,
S. C. 4 Burr. 2105. On attachment THE defendants were justices of the peace of St. Ives in defendant can- Cornwall, and had evaded the signing of a poor's rate, in obenot confess the dinnen te he dience to a writ of mandamus, by keeping out of the way, so as
writ of man contempt till the interrogatories not to be served with the writ; and an attachment was granted are filed. for the contempt.
Morton, for the defendants, and Thurlow, moved, that the defendants might come in and plead guilty to the contempt, and receive the judgment of the Court without answering to interrogatories; and cited K. v. Burridge, M. 9 Geo. 1, where the defendant present in Court acknowledged the contempt, prout charged in the affidavits, and a fine was imposed upon him for the same, without his personal appearance; upon the
undertaking of his clerk in court to pay the fine and the pro- THE KING secutor's costs.
But, per Cur.--The motion is irregular, and cannot be u granted, if opposed, (as it was by Sir Fletcher Norton and others), for the K. and Burridge appears upon the face of it to have been by consent. The attachment itself is mesne process to bring in the party, and bailable; and there is no charge till the interrogatories are filed: if then you will come in and confess * the matter charged in the interrogatories, you are at [ *638 ] liberty to do so, but not before. If improper interrogatories are administered, the party may refuse to answer them; but we give no opinion as to the mode of refusal. There is a difference between an attachment for non-payment of costs and the like, which is in nature of an execution, and one for an actual contempt, which is only to compel an appearance. (See Bac. Abridgm. tit. Attachment) (i).
(1) See also R. v. Wheeler, ante, 311; R. v. Elkins, post, 640.
MOORHOUSE v. WAINHOUSE. IN trespass; the defendants justify under the title of Samuel Settlement of Appleyard, to which the plaintiffs reply, and the defendants the wife's estate
on herself for demur to the replication. The case, upon all the pleadings, lite
89, life, remainder appeared to be this:-John Appleyard, and Martha, his wife, to the husband Ist December, 1725, by a deed to lead the uses of a fine, Hil. for life if any
1 issue of the mar12 Geo. 1, settled the premisses (being the wife's inheritance) i to the use of said Martha for life; remainder to John Apple- live, remainder yard for life, if he and the said Martha should have any issue if she dies sans
issue of one that should so long live; remainder to all such children in fee,
all such charen ee, moiety to him is tenants in common. If Martha should die without such in fee, and of issue(k), or all such issue should die before twenty-one; then, the other to the
wife's relations ; (k)“ This word such plainly confines the fee, nothing else could; for if the case be
mom his remainder in ssue to issue of her by her then husband, stripped of that circumstance, it is reduced
fee does not nd consequently at his death there could to a mere limitation of a remainder after a ar
there arise, unless he e none, unless she was enseinte; and bare estate for life;" MSS. Serj. Hill. herefore quære, whether the possibility of And even if the possibility of posthumous W
wife. · posthumous child would prevent the issue did suspend the vesting, the recovery esting of the contingent remainder in fee, must have been suffered during Martha's imited to the husband on the event of pregnancy: but by 10 & 11 W. 3, c. 16, here being no issue of Martha by him; posthumous children are put on the same or it is sufficient if a remainder vest eo in- footing as children born in the life-time of tanti, that the particular estate determines. the ancestor ; see Doe v. Quartley, 1 T.R. f it did vest, then the subsequent recovery 634. See the real ground of the decision ould not bar it (Doe v. Reason, cited 3 in the next note. Vils. 244, and see Doe v. Holme, post, If the limitation had been, "if M. should 77], unless Martha was tenant in tail, and die without issue" generally, the contint seems impossible to support any con- gency could not have arisen till her detruction of the deed, by which she could cease: in which case the remainder to the ake more than an estate for life in the heirs of J. A. in fee would undoubtedly noiety limited to the husband in fee on have been contingent, and the tenant for he contingency of her death without issue life, by her recovery before issue born, f the marriage: and if the possibility of would have gained a tortious fee: yet the osthumous issue did not suspend the vest- heirs having the ultimate reversion, would ng of the remainder to the husband in have had a right of entry to be exercised
MOORHOUSE as to one moiety, to John Appleyard in fee, and as to the
or other moiety, to Susanna Mitchell, mother of said Martha,
for life, and to the appointees of said Susanna and her second husband, and, in default of appointment, to said Susanna in fee. Proviso, that John Appleyard and Susanna Mitchell should pay 21. 2s. to one John Rishworth; and, in default, the trustees to enter and raise the same out of the rents and profits. 10th August, 1741, John Appleyard died. Martha intermarried with Richard Shackleton, who also died: and by lease and release, 26th and 27th October, 1764, Martha Shackleton makes a tenant to the præcipe for a recovery, which was had the
same Term, and the uses declared to Martha Shackleton in fee. [ *639 ] * 21st December, 1764, Martha Shackleton devises the pre
misses to the plaintiffs, who bring this action against the defendant, who claims under Samuel the brother and heir of John Appleyard.
This Case was argued in Easter Term by Wallace for the defendants, and Walker for the plaintiffs; and, in this Term, by Coxe for the defendants: But Blackstone, for the plaintiffs, was prevented from going on by the Court, who were clearly of opinion, upon all the circumstances of the case, that the contingency, on which it was intended that the estate of John Appleyard should arise, was that of his surviving his wife; and that, as he died first, the contingency never arose. The other points made by the counsel- whether this was an estate for life, or in fee tail by implication in Martha; and whether, as the estate was contingent and never vested in the husband, it can now vest in his heirs, were not resolved by the Court; who upon the first point only gave
Judgment for the plaintiff ().
within five years: see Carter v. Barnar. diston, 1 P. Wms. 509, 520: Loddington v. Kime, 1 Salk. 224, 225. Now this being an estate of the wife's inheritance, the reversion would be in her heirs; and therefore in this view of the case, the defendant would have had no title. And if her heir had not entered for the forfeiture, still would he have been entitled under the uses declared of the recovery. However, this supposed case could not take place, for, by the limitation, “ if she should die without issue," she would take an estate tail by implication, and the recovery would have been well suffered.
(1) This case is adduced by Mr. Fearne as one of those, where the existence of the devisee, &c. of the contingent interest, at some particular time, may by implication enter and make part of the contingency itself, upon which such interest is intended
to take effect; F. C. R. 364: and as an exception to that class of cases, where a contingent remainder of inheritance is transmissible to the heirs of the person, to whom it is limited, if such person chance to die before the contingency happens; Ibid. But here there could not have been any contingent remainder to be transmitted; for it would be a vested one immediately on the death of J. A., as observed in the preceding note.
Another question arises; whether the devise by Martha, was a devise of the fee limited to her by the recovery deed, or of her old reversion. For if no recovery had been suffered by her, she would have had a life estate under the settlement, and (the remainder in fee to J. A. having failed) the reversion in fee, it being land of her own inheritance.