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being compelled to erect new bridges-non * distringatur facere pontes-not to exempt him from repairing those already erected, in case they be public benefits. This is the grand criterion. If a man wantonly erects an useless, or a mere ornamental bridge, neither he nor the public are bound to sustain it (o). And if it is principally for his own benefit, and only collaterally of benefit to others, as in the case cited of the bridge to the mill, the public have nothing to do with it. But where it is of public utility, as is expressly found in the present case, the public, which reaps the benefit, ought to sustain the burden of repairing it. Else it would be a great discouragement to public spirited persons to erect a beneficial bridge, provided they must either repair it themselves, or it must run to ruin.

(0) S. P. R. v. West Riding, 2 East, 342; where it was also held, that if a bridge be built in the highway, where it is not of public utility, or if it be built only colourably in an imperfect manner, for the purpose of throwing a burthen upon the public, it may be indicted as a nuisance. But now, by 43 G. 3, c. 59, s. 5, (passed A. D. 1803), it is enacted, that no bridge shall be deemed a county bridge unless it be erected in a substantial and commodious manner, under the direction or to the satisfaction of the county surveyor or person appointed by the justices, &c.

(p) This case was confirmed and approved of, and a similar decision made, in R. v. West Riding, 2 East, 342; R. v. Inhab. of Kent, n. (n), supra. So where townships have immemorially repaired a foot-bridge, which they afterwards enlarge to a carriage-bridge, though they are still liable to repair pro rata, yet the county shall repair the residue. Per Buller, J."Where a party is bound to repair a footbridge, he shall not discharge himself by turning it into a horse or carriage-bridge; but still he shall only be liable to repair it as a foot-bridge, that is, pro rata: but otherwise the county are bound to repair all bridges of public utility;" R. v. West Riding, 2 East, 353, n. (a). That seems distinguishable from the principal case; for, in the latter, the inhabitants of Glusburne had built quite a different bridge in a different place, at a distance of sixty yards from where the foot-bridge formerly stood: and Aston, J., seems to have been of opinion, that if the foot-bridge had been enlarged, or the new bridge built in the same place, the inhabitants of Glusburne would have been chargeable to the repair of it pro rata; as appears from the report in 5 Burr. 2597. So the liability of the county extends to repairing all public bridges, without distinction of foot, horse, or carriage-bridges, unless they can shew that others are bound to repair particular bridges; R. v. Inhab. of Salop, 13 East, 95. On an indictment for not repairing a bridge used by carriages "at all such times as

Judgment for the Crown (p).

THE KING

v.

WEST RIDING,
YORKSHIRE.

[

" and when it hath been or is dangerous "to pass through the river by the side of "the bridge," and not guilty pleaded; it was proved, that the carriage-road went through a ford, and the bridge was sometimes barred against carriages, but that carriages always had passed over the bridge at time of floods: the Court were of opinion, that it was not necessary that the bridge should have been open at all times to constitute it a public bridge; and though it might have originated in the convenience of an individual, to prevent passengers from passing over the adjoining land in times of flood, still it might be of public right: but evidence of individuals having repaired it, might be admitted to raise an inference with the jury, that the county were not liable; R. v. Inh. of Northampton, 2 M. & S. 262. So in a similar case, where an indictment against individuals stated, that the bridge was used by all the King's subjects at their free will and pleasure, and the evidence was, that it was only used in times of flood, the variance was held fatal. Lord Ellenborough,—" Although the defendants may be bound ratione tenuræ to maintain this bridge to be used in times of flood, they must be acquitted upon the present indictment;" R. v. Marquis of Buckingham, 4 Camp. 189. But where the proprietors of a navigation cut through the highway, and erected a bridge over the cut, which had been always used by the public, they were held liable to repair, and not the county. Lord Ellenborough,—" If occasion require them to cut through a public highway, their duty is to furnish a substitute to the public by means of a bridge." Bayley, J.-"What benefit does this county derive from passing over a bridge instead of the solid highway?" R. v. Kerrison, 3 M. & S. 526; S. P. R. v. Inhab. of Kent, 13 East, 220; R. v. Inhab. of Lindsey, 14 East, 317; R. v. Inhab. of Oxfords., 4 B. & C. 196, 6 Dowl. & Ryl. 231. And see 12 G. 2, s. 1, 13, 14; 43 G. 3, c. 59; 52 G. 3, c. 110, s. 5; 54 G. 3, c. 90; 55 G. 3, c. 143.

*687 1

Grant by a man to A. B., remainder to his own heirs male; his heirs male

take by descent.

If such limitation is made by

will, or by a third person in a deed,

the heir male takes by purchase.

[

WILLS and Others v. Palmer.

S. C. 5 Burr. 2615.

CASE stated out of Chancery, for the opinion of the Court of King's Bench:-15th May, 1723; By indenture, in consideration of a marriage between John Palmer and Ann Danvers, &c., Archdale Palmer, Ann, his wife, and John Palmer, their son, covenant with trustees to levy a fine of certain premisses in the county of Leicester to make a tenant to the præcipe, for the purpose of suffering a common recovery; to the use of Archdale Palmer till the solemnization of the marriage: and afterwards, as to part of the premisses, to the use of John Palmer for life, sans waste; remainder to trustees to preserve contingent uses; remainder to Ann Danvers for life, for her jointure; remainder to the first and other sons of said John by the said Ann in tail male; remainder to trustees for five hundred years; remainder to the first and other sons of John *688] Palmer by any future wife in tail male; remainder to * the heirs male of the body of Archdale Palmer; remainder to the heirs of the body of John Palmer; remainder to John Palmer in fee. And as to the residue of the premisses, to divers uses, which are all spent, or never took effect; with remainder to the use of Archdale Palmer in fee. The trust of the five hundred years' term was to raise portions for the daughters of the marriage, in case of failure of issue male.

The marriage took effect. 24th August, 1726, John Palmer died, leaving issue only Ann, now the wife of the plaintiff, Thomas Wills. And his widow, Ann, took possession of the premisses limited to her in jointure, and died 27th December, 1764. Archdale Palmer, by his first wife, had said John Palmer, and William; and, by his second wife, had a son, Henry, the defendant, and other children; and, 10th December, 1729, by his will (q) devised that part of the premisses which was limited to himself in fee to his son, William, for life; with remainder to his first and other sons in tail male; remainder to the heirs male of his own body; remainder to his own right heirs.

4th September, 1732, Archdale Palmer died, leaving his grand-daughter, the plaintiff, Ann Wills, his heir at law, and his sons, William and Henry, surviving him. 1738, William Palmer died without suffering any recovery, leaving a son, [ *689] Henry, who died, July, 1743, without suffering a recovery, and left a son, Henry John, who died an infant, sans issue, December, 1762. On the death of Henry John, Henry Palmer, the defendant, entered on the premisses devised by his father's will. December, 1764, Ann Palmer the widow of John died; and said Henry entered on the premisses limited to her in jointure. Hil. 1767, a bill in Chancery was brought

(q) Noticing, that by the death of his eldest son, John, without issue male, that part of his estate then in his possession,

was, by the said marriage settlement, vested in him in fee simple, devised the said estate to his son, W. P., for life, &c.

by Thomas Wills and Anne his wife to recover possession of all the premisses: and, on the hearing before Lord Chancellor CAMDEN, 14 March, 1769, a case was ordered to be made with this question:

Whether any, and what estate, passed, by the said indenture of the 15th of May, 1723, to the defendant Henry Palmer, as heir male of the body of Archdale Palmer, the grantor? And whether any, and what estate, passed to the said defendant Henry Palmer, as heir male of the body of the said Archdale Palmer, by his will dated 10th December, 1729?

The certificate was in these words:

Having heard counsel on both sides and considered this case, we are of opinion, that the defendant Henry Palmer, by the said indenture dated 15 May, 1723, took by descent, as heir male of the body of Archdale Palmer the grantor (r). In case a third person had been the grantor, we should have thought, that Henry Palmer would have taken an estate in tail male by purchase, under the description of heir male of Archdale Palmer. And we are of opinion, that an estate in tail male passed to the defendant Henry Palmer, as heir male of the body of Archdale Palmer, by his will dated 10th December, 1729 (s).

17th May, 1770.

N. B. ASTON, J., absent in Chancery.

(r) It is to be observed, that inasmuch as H. P. took an estate tail by descent, there must have been the same estate executed in his father, A. P., and there not being any estate for life expressly limited to him (which would have brought the case directly within the rule in Shelley's Ca.), it must be considered to have resulted to A. P. the grantor by implication; Pibus v. Mitford, 1 Vent. 372; Penhay v. Hurrell, 2 Vern. 370 (ed. by Raithby) Fearne, C. R. 25, 42 (8th ed.); Co. Litt. 23 a. As there are express limitations to take place immediately after the marriage, but which might by possibility all determine in the grantor's life-time, a resulting use in remainder after the other prior uses limited had been served, would be implied to A. P. the grantor, with which implied remainder the limitation to the heirs male of his body would unite, and thereby give him an implied estate tail in remainder. If this resulting use could not have been implied, then H. P. must have taken by purchase; Southcot v. Stowell, 1 Mod. 226, 237, 2 Mod. 207; and it seems, indeed, that if such estate could not have been implied, the limitation to the heirs male, being contingent, might have become void, for want of a preceding estate of freehold to support it. But no such estate can arise by implication, or as a resulting use, to a person who is not the owner of the estate granted;

MANSFIELD.
E. WILLES.
W. BLACKSTONE.

which is the case put of a third person be-
ing the grantor; Davies v. Speed, Carth.
262, Salk. 675; affirmed in D. P., Show.
P. C. 104; Sir T. Tippen's Ca., cited 1
P. Wms. 359.-See Fearne's C. R. 40,
and Hayes v. Foorde, post, 698. By a
conveyance at common law (not by way of
use) the limitation to the heirs special of
the grantor would be void; because a donor
cannot make his own heir a purchaser, even
of an estate tail, without departing with the
whole fee; Id. 52.

(s) This is an authority for the posi-
tion, that where in a devise there is a li-
mitation to the heirs male of A., operating
as words of purchase, a person answering
the description of heir male, though not
that of heir general also, will take under
such limitation; for in the principal case
Ann Wills was the heir general, and there-
fore H. P. did not unite the two characters
of heir special and heir general. This po-
sition is also supported by the cases of
Brown or Newcomen v. Barkham, Vern.
729, Prec. Ch. 442, 461, 1 Stra. 35; af-
firmed in Newcomen v. Bethlem Hospital,
Ambl. 8; Goodtitle dem. Weston v. Bur-
tenshaw, Fearne, C. R. Append. 570 (8th
ed.). The like held in K. B. in Goodtitle
dem. Bailey v. Pugh, Id. 573—the judg-
ment of K. B. was however reversed in D.
P.; see 2 Meriv, 349, 3 Bro. P. C. 454
(Toml. ed.). It is also adopted in Mr.

WILLS

บ.

PALMER.

WILLS

บ.

PALMER.

Preston's Treatise on Conveyancing, vol.
iii, 79: but is contrary to the opinion of
Ld. Coke, Co. Litt. 164 a, which opinion
is ably supported by Mr. Hargrave in a
very learned and ingenious note, Co. Litt.
24 b, n. (145). Yet in a subsequent note
(164 a, n. (4)) after mentioning the princi-
pal case, and that of Goodtitle v. Burten-
shaw, he admits, that "after such autho-
rities, it can be scarcely necessary to guard
the reader against incautiously adopting
his private ideas." The cases here cited

are treated by Mr. Fearne as exceptions to the general rule laid down by Ld. Coke.see F. C. R. 212, (8th ed.) and Mr. Butler's note, Ibid. The reader may also refer to the arguments in Cholmondeley v. Clinton, reported in 2 Meriv. 173, (particularly pp. 270, 320); S. C. 2 B. & A. 625, 2 Jac. & W. 1. As to cases where a limitation to the heir special of a person living is a sufficient designation of the person for the remainder to vest, see Goodright dem. Brooking v. White, post, 1010.

[ 690 ]

A master or owner, not being a regular pilot, may not pilot his own vessel up the Thames.

KEMLER qui tam v. BLANCHARD.

A SPECIAL case reserved before BLACKSTONE, J., at last Maidstone Assizes on an action of debt for 107. penalty, under statute 3 Geo. 1, c. 13(t), for piloting his own ship up the Thames, not being a sworn pilot or an inhabitant of Deal or Dover. It was admitted that the defendant was master and part-owner of the brig Betsey; that, when on land, he resides at Scarborough in Yorkshire; that, on 20th June, 1769, the said brig arrived off Dover on a voyage from the Grenades to London, where a regular pilot went off and offered his service, but was refused;-that the same afterwards happened at Margate; and that he piloted himself to London.

It was contended for the defendant, that by the construction of the act the master or owner might pilot his own vessel without incurring any penalty. But the Court thought clearly otherwise; that the act was made to encourage the corporation of pilots, and to save the lives of the King's subjects from being hazarded by unskilful pilotage; and therefore ordered the Postea to the plaintiff.

(t) Repealed by 52 G. 3, c. 39; see sect. 59.

One tenant in common shall not bar the other by the

statute of limi

tations, where there is no ad

verse possession. [ *691 ]

FAIRCLAIM on the demise of EMPSON v. SHACKLETON.

S. C. 5 Burr. 2604.

A CASE reserved on an ejectment, tried last York Assizes (v), before GOULD, J. 17th August, 1721, at a Court held for the forest of Knaresborough (where lands pass by surrender and admittance) Jane Shackleton and Patience Readshaw were respectively admitted tenants in fee simple, each to one undivided moiety of certain lands in the occupation of William Lawson. *17th July, 1723, Emanuel Empson and Patience his wife (late Readshaw) were admitted on their own surrender to her moiety; to hold to said Emanuel and Patience, their heirs and assigns. 1724, said Patience died, and 20th April, 1728, said Emanuel died; both without issue. 29th May, 1728, Benja

(v) A. D. 1770. An adverse possesssion during twenty years bars an ejectment, by 21 J. 1, c. 16.

min Empson was admitted to said moiety in fee-simple as brother and heir of said Emanuel. Hil. 2 Geo. 2, (1728-9), Benjamin Empson obtained judgment by default in ejectment against William Lawson, in the Common Pleas; and said Lawson, 10th April, 1729, attorned tenant to Benjamin Empson, and paid him afterwards one year's rent of said moiety. 5th June, 1734, Benjamin Empson died; and, 24th July, 1734, Benjamin Empson (an infant of nine years) was admitted to said moiety in fee-simple, as nephew and heir of the other Benjamin. 9th August, 1754, this Benjamin Empson died, leaving James the lessor of the plaintiff, his son and heir, an infant of ten years, who, on 15th October, 1766, was admitted tenant in fee-simple. Jane Shackleton died in 1729, leaving the defendant her son and heir; who, being an infant, was admitted to her moiety in fee-simple, 13 August, 1729. In 1744, William Lawson, by leave of Mr. Shackleton, gave up the farm to his son Christopher, who paid Mr. Shackleton the whole rent then due for the premisses, and has paid Mr. Shackleton the whole rent ever since. And no other payment appears than is above stated. Verdict for the plaintiff, subject to the opinion of the Court on this question-Whether the plaintiff is barred from recovering by the statute of limitations?

FAIRCLAIM

v.

SHACKLETON.

*It was argued by Mr. Walker for the plaintiff, that Shackle- [ 692 ] ton and Empson being tenants in common, the possession of one was the possession of both. And he cited Reading and Royston, Salk. 423, Ld. Raymond, 829; Ford and Ld. Grey, Salk. 285, 6 Mod. 44(u).

Mr. Lee, for the defendant, took a difference between tenants in common and joint-tenants: because they differ in title, and because the statute of Queen Anne (w) gives an action to tenant in common againt his partner; which reduces tenants in common to the same state as other persons. And urged, that in the Earl of Sussex and Temple, Ld. Raym. 310, the opinion of Holt, C. J., differed from the Case of Reading and Royston. He also eited Storey and Ld. Windsor, 2 Atk. 632.

But per Cur'. (Lord MANSFIELD, C. J., WILLES, BLACKSTONE, Js., absente ASTON, J.) The possession of Shackleton is the possession of Empson the other tenant in common, it not appearing to be an adverse possession, but merely an acquiescence in Empson the father for ten years; after which succeeded the minority of Empson the son. And Shackleton had not the colour of a right to the whole; his own title upon the court rolls appearing to be only to a moiety.

(u) See also Co. Litt. 199 b.

(w) 4 An. c. 16, s. 27, which gives an action of account to one joint-tenant or tenant in common against the other: as to which see Wheeler v. Horne, Willes, 208.

(a) But 36 years sole and uninterrupted possession by one tenant in common, without any demand made or claim set up by his companion, is a sufficient ground to

Judgment for the plaintiff (x).

presume an actual ouster of the co-tenant;
and will therefore be a bar. Per Ashhurst,
J.-"With respect to the case of Fairclaim
v. Shackleton, the single question there
was, whether the plaintiff was barred by
the statute of limitations. The possession
was a possession of 26 years; but in that
case it was not left to the jury to presume
either an adverse possession or an actual

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