1809.

GLADSTONE

v.

GILDART.

MANSFIELD C. J. This cafe depends entirely on the meaning of the 4th fection. The act recites great danger from want of buoys, &c. and great want of docks; and that the mayor, &c. have devoted a piece of ground for the purpose of making a dock, and enacts that the mayor, &c. may make a dock, and of course, referring to the purpose of fatisfying the expences of all these works, it enacts, that certain duties shall be payable for every ship coming into or going out of the said port; and it makes the place to which the ship goes, or from which it comes, the measure of the amount of duty; contemplating, I fuppofe, that a fhip coming from a fhort voyage, would make more frequent trips, and that though it paid lefs at once, it would pay more in the year; then comes the fourth fection, the words of which are, the duties to be paid at the time of the fhip's dif charge, either inwards or outwards, fo as no fhip fhall be liable to pay the duty but once for the fame voyage both out and home, notwithstanding such ship may go out and return back with a lading of any goods or merchandize. What then is the cafe here? How many voyages out, and how many home, are here? One, Only one voyage out, and one voyage home; fo that I have very great difficulty to fay how the act can be conftrued otherwife than the Plaintiff contends. Nothing in the act restrains the voyage, or says that the ship shall not vary it while fhe is out, or prefcribes that the shall come home the shortest way: fhe may go to any ports the pleafes, and pay toll from the furtheft port, and it is only one voyage out and one voyage home,

HEATH J. I am of the fame opinion: This is only one voyage. But it is faid that the duty is paid for the buoys as well as for the dock: it is fo, but that does not vary the circumstances under which the right arifes; the

duty

duty only accrues in refpect of the ships coming into and being in the port. No found inference against this conclufion arifes from there being an exception in favour of ships in distress: the legislature juftly thought it would be inhumanity to make a ship diftreffed pay for coming into the port. So there may be fome good reafon for exempting the Chefter veffels, either that they are driven within the port of Liverpool, or fome other good reason which we may not be acquainted with.

LAWRENCE J. This cafe lies in fo narrow a compass that I cannot amplify it by any argument. The act im pofes only one duty on one voyage. This is but one voyage, and therefore only liable to one duty.

CHAMBRE J. I entirely concur: it is far too clear to be capable of being rendered clearer by any farther argument.

Judgment for the Plaintiff.

1809.

GLADSTONE

V.

GILDART.

CASWELL V. Coare.

IN this cafe, the facts of which are reported ante,

June 21.

Where the fub

Plaintiff holds the

Defendant to bail on the money counts, and re

ift vol. 566. the Plaintiff had held the Defendant to ftantive caufe of special bail for 20/. and upwards, without a Judge's action does not require special order he had declared in affumpfit on a breach of the bail without an warranty of a horse, and had added the money counts; order, if the and at the trial went for, and recovered, a fum expended for the keep of the horse after a fuppofed tender and refufal. The Court on the motion for a new trial, being clear in opinion that nothing was due for the keep of the horfe, and having reduced the verdict accordingly, Court,on motion, Cockell Serjt. for the Defendant, had on the last day of will discharge the Eafter term obtained a rule nifi, that an exoneretur might bail from their be recognizance.

covers nothing

thereon, the

1809.

CASWELL

v.

COARE.

be entered on the bail piece, and that the Plaintiff might repay the Defendant 57. for the cofts of the bail bond, because the Plaintiff was not entitled to special bail in an action on a warranty, without a Judge's order.

Beft Serjt. now fhewed caufe. The verdict, although reduced to 2cl. is taken generally on all the counts; therefore fo long as it remains, the bail are liable; and before this motion could be made, the Defendant should first have moved that the verdict might be taken on the count upon the warranty only. But there was also a fair ground for the Plaintiff to fuppofe that he was entitled to recover upon the count for money had and received, in confequence of the failure of the condition of warranty.

Lens Serjt., in the abfence of Cockell, fupported the rule. The refidue of the verdict was obtained, not on the count for money had and received, but on the count for money paid for the keep of the horse.

The Court at first obferved that this was a motion novel in its nature, and that an action for maliciously holding to bail would be the proper remedy: but on its being suggested by Lens that the Defendant might probably be unable to prove malice, though he was improperly held to bail, and that the motion did not go to difcharge the Defendant, but the bail only, whofe fecurity had been improperly required in the first inftance, the Court confidered, that if the Plaintiff should proceed here against the bail, he would proceed against them on a judgment for 207. on the money counts, when he had failed to recover any thing thereon, and had fucceeded only on the warranty; and they therefore made the rule abfolute as to entering the exoneretur, but difcharged it as to the cofts of the bail-bond.

DOE, on the feveral Demifes of HENRY LEICESTER, Efq. and ANN his Wife, RICHARD JOHNSON and WILLIAM CHIPPENDALL, ANN LEICESTER, and HENRY LEICESTER, V. Biggs.

THIS

1809.

June 21.

Devife in truft

to pay unto, or elfe to permit and

fuffer the teftator's niece to receive the rents.

Held that the le gal estate was

executed in the niece, because the words "to permit" came laft, and in a deed the firft, in will the last words prevail. A devife in

a

HIS was an eje&tment brought to recover certain premifes in Middlefex. Upon the trial at the Mid. dlesex fittings after Hilary term 1809, before Mansfield C. J. the cafe appeared to be this: Jofiah Cole, being feifed in fee of the premifes, by his will, dated the 31ft of March 1770, devifed them unto John Moore and Jofeph Skinner, and the furvivor of them, to hold to them and the furvivor, and his heirs and affigns, upon truft to permit and fuffer the teftator's wife to have, receive, and take the rents, iffues, and profits thereof, during her natural life, for her own abfolute use and benefit, and from and after her deceafe, in cafe the teftator's niece, Ann Cole fhould be then living, in truft to pay unto, or permit and fuffer his faid niece Ann Cole to have, receive, truft to pay unto and take the rents, iffues, and profits thereof, for her na- gives the legal tural life, with remainders over; and he made his wife eftate to the his executrix. Ann Cole after the teftator's decease, intermarried with Henry Leicefler. A verdict having been found for the Plaintiff, Shepherd Serjt., in laft Eafter term, obtained a rule nifi to fet it afide and enter a nonfuit, upon the ground that there was no count on the he has usually demife of Moore, the devifee, who had furvived Skinner, paid rent, and he and that the legal estate was in the devifees in truft un der the will: he also moved it on another ground, that although half a year's notice to quit was proved on the part of the Plaintiff, there was no proof at what time of the year the Defendant's tenancy commenced; but nancy determines Mansfield C. J. obferved, that the tenant on receiving at the time menthe notice, made no objection to the terms of it; and tioned in the

the

trustee.

If half a-year's notice requires a tenant to quit at the fame time of

the year at which

does not, on re

ceiving it, object to the time, this is fufficient evi

dence that the

year of his te

notice.

1809.

DOE, Leffee of LEICESTER and Others.

the Plaintiff proved a receipt of rent at Midfummer and Christmas; and the Court refufed the rule on that point.

Vaughan and Manley Serjts. fhewed cause against the rule. It is now clear, that unless either trustees have

Biggs. fome active duty impofed on them, fuch as the doing of fome repairs, or the payment of annuities, or other difbursements, which renders it neceffary that they should have the legal eftate, or unless it is devised to them with a view to the fole and feparate ufe of a married woman, which has always been deemed per se sufficient ground to hold it a ufe executed in the trustees, the legal estate is in the perfon who has the beneficial intereft. Thus, in 2 T. R. 445. Silvefter d. Law v. Wilson, an authority which was mentioned when the rule was obtained, the devife was to take and receive the rents, and the teftator thereby ordered, "that fuch rents should be applied for "the fubfiftence and maintenance of his fon," and Afbhurft J. dwelt upon this circumstance, and thought that the teftator wifhed that the trustees fhould have an eye to the application of the money. But no cafe is to be found where the trustees have been held to take the legal estate, if they had nothing affigned them to do but to receive and pay over the rents. Garth v. Baldwin, 2 Vef. 646. Bagshaw v. Spencer, 1 Vef. 144. The foundation of all these cafes was that of Jones v. Lord Say and Sele, 2 Vin. Abr. 262. which is the best report of it; S. C. Eq. Cas. Abr. 383. but that was the cafe of a feme covert, and there were also annuities to be paid by the trustees. In 7 T. R. 653. Harton v. Harton, Lord Kenyon C. J. faid, that the provifion in that cafe appeared to be made in order to fecure to the feveral femes covert a feparate allowance, free from the control of their bufbands; to effectuate which, it was effentially neceffary that the trustees fhould take an eftate with the ufe exe

cuted;