LONGHEAD V. PHELPS. 66 "should happen to die without issue male of his body, on the "body of the said Mary begotten, or if all the issue male be"tween them shall happen to die without issue, and there should "be issue female of the marriage, which should arrive respec"tively to the age or ages of eighteen years, or be married: "Then, from and after the death of the survivor of John Phelps and Mary Moore without issue male, or in case at "the death of the survivor there shall be issue male, then [ *705 ] "from and after the death of such issue male without issue, "the trustees should raise 5007. for one daughter, 1000l. for "two; and, in case of three or more, should assign the whole term to their use; with a clause of maintenance till eighteen "or marriage." There was issue of this marriage one son, Richard, and four daughters, who all lived to eighteen, and were married; and they, or their representatives, are the now defendants. 1731, John Phelps died. 1744, Richard Phelps, the son, died without issue; but devised to his wife, Mary, (who afterwards married Thomas Hopkins, the lessor of the plaintiff), inter alia, the premisses in question. 1760, Mary, the mother, died, and the four daughters entered, against whom this ejectment is brought. 66 Glyn, Serjeant, for the plaintiff, argued, that the trusts of the term were void, being on too remote a contingency,―the dying of the issue male of the marriage without issue generally. But the Court, without hearing counsel for the defendants, were clear that the first part of the contingency was good, viz. "in case John and Mary died without leaving issue male." And as that happened in fact to be the case, they would not enter into the consideration how far the other branch of the contingency might have been supported; which could only come in question, in case Richard had survived both his parents. So ordered the (v) Where A. devised an advowson to he first or other son of B., that should be bred a clergyman and be in holy orders, (and to be in holy orders, a person must be twenty-three years of age at least), in fee; but in case B. should have no such son, then to C. in fee: it was held, that both devises were void, as depending upon too remote a contingency; and that therefore, though B. died without having had a son, C. did not take under the limitation in the devise. The Court were clearly of opinion, that the first devise to the son of B. was void from the uncertainty as to the time when such son, if he had any, might take orders; and that the devise over to Postea to the defendant (v). C., as it depended on the same event, was also void; for the words of the will would not admit of the contingency being divided, as was the case in Longhead v. Phelps. That there was no instance in which a limitation after a prior devise, which was void from the contingency being too remote, had been let in to take effect; Proctor v. Bp. of Bath & Wells, 2 H. Bl. 358; acc. Earl of Chatham v. Tothill, 6 Bro. P. C. 451, or 7 Bro. P. C. 453 (Toml. edit.); Butterfield v. Butterfield, 1 Ves. Sen. 133: see Goodman v. Goodright, ante, 188; Wellington v. Wellington, ante, 645, and Fearne's C. R. 508. GOODRIGHT on the demise of SMALLWOOD v. STROTHER. IN ejectment the demise stated, that one Mary Smallwood, on The vill, in such a day, at Haswell, in the county of B., demised to the which the deplaintiff two messuages, two closes, &c. mised lands lie, may after ver After verdict for the plaintiff, it was moved, in arrest of dict be collected judgment, that no vill was mentioned in which the lands de- from the vill in mised lie. which the ejection is laid to have been com But on shewing cause, it appearing, that, in the subsequent part of the declaration, it was stated that the defendant, at mitted. Haswell aforesaid, ejected the plaintiff from the said lands, &c. The Court held, that this amounted to a sufficient certainty that the lands lay in the vill (u) of Haswell; and so (u) It is not necessary to aver the premises to be in a parish, for they may be in an extraparochial place, or in a vill or hamlet, and it is sufficient to describe that place by its name, without describing it by the name of its civil or ecclesiastical division; Goodtitle dem. Bremridge v. Walter, 4 Taunt. 671: and if they are described as lying in a parish, it is sufficient to describe the parish by the name by which it is ordinarily known, Ibid; Doe dem. Tollet v. Discharged the rule. Salter, 13 East, 9; R. v. Glossop, 4 B. & MASFEN v. Touchet. yearly, and the DEBT on bond conditioned to pay 600l. and interest in three On bond to pay years from the date of the bond, by instalments of 157. half interest half yearly, and 6157. at the end of the term, which is not yet ar- principal in rived. On failure of payment of interest, obligee brought his three years, action. And it was now moved to stay proceedings on pay- judgment shall ment of the interest due. But the Court ordered judgment to be entered for the whole; with stay of execution on payment of the interest due (w). (w) S. P. Tighe v. Crofter, 2 Taunt. 387; Van Sandau v. -- 1 B. & A. 214. But execution cannot be taken out for subsequent instalments in arrear, without reviving the judgment by scire facias, pursuant to 8 & 9 W. 3, c. 11, s. 8, although such subsequent instalment become due within a year after the judgment obtained for default of payment of the previous in- be entered on failure of paying interest, but with stay of execution on discharging it. CLAYTON v. JENNINGS. ASSUMPSIT for five guineas, won by betting at a horserace. The bet was ten guineas by plaintiff to five by defendant. Plaintiff won, and obtained a verdict. * And now Dunning moved, in arrest of judgment, 1. That Betting at a horse-race to above 101. with- 9 Anne. CLAYTON v. JENNINGS. And if bet be unlawful on one side, and lawful on the other, neither can be recovered for want of mutuality. this was within the statute 9 Anne, c. 14 (w); 2. That there was no mutuality; for as the defendant could not have recovered the ten guineas by reason of the statute of Queen Anne, therefore the plaintiff shall not now recover the five. Davy, Serjeant, shewed cause,-That the statute 9 Anne does not extend to horse-races. The games therein provided against are allowed to be exercised within the Queen's palace, which horse-racing cannot be. Besides, the statute 18 Geo. 2 (x), makes horse-racing lawful if it be for 50l. And if the game be lawful, betting at it is lawful likewise. To bring it within the statute of the 9 Anne, the game must be unlawful. Baxter and Pye (y), in the Common Pleas, 5 Geo. 3; action for a by-bet on a horse-race, of eight guineas to fourteen guineas: same objections as here. Woodburn and Marley, Stra. 1159, 15 Geo. 2, cited and relied on. The Court thought themselves bound by that case, and gave judgment for the defendant; otherwise they inclined for the plaintiff. But it was not then adverted to, that Woodburn and Marley was previous to the statute 18 Geo. 2, which makes horse-racing lawful. Dunning, in support of the rule, cited Oats and Collins (z), Nuttal and Thompson, to prove horse-racing within the statute; and Lyneham and Longbottom, to prove that a foot-race was also within it. And insisted, that it does not signify whether the game be lawful or not, but if a man loses 10%. by playing or betting at it, it is within the statute (a). And of that opinion was the Court; and held, that, as the ten guineas could not have been recovered by reason of the statute, there was no mutuality in the wager. And ASTON, J., [ *708 ] mentioned the Case of Connor and Quick in the King's Bench, about ten years ago, when the Court took a distinction between running a horse for 50%., which was lawful, and betting on the side of the horse, which was not so. And so by the opinion of the whole Court (Lord MANSFIELD, C. J., ASTON, WILLES, and BLACKSTONE, Js.), (w) By the 1st sect. of which, all notes and securities given for money lost at any game whatsoever are made void; and by s. 2, any person, having lost and paid above 101. at any game, may recover the same: see also 16 C. 2, c. 7, and Robinson v. Bland, ante, 234, 259. (r) Rather 13 G. 2, c. 19, s. 2: for 18 G. 2, c. 34, s. 11, only repeals s. 3, of the former statute, relating to weights to be carried. (y) 2 Wils. 309. Judgment was arrested. (z) 2 Barnard. 291. (a) But if neither of the sums betted by the parties amount to 107., and the race itself is run for the sum of 50%., the wager is not illegal, and may be recovered; M'Allester v. Haden, 2 Camp. 438; S. P. per Lord Kenyon, in Good v. Elliott, 3 T. R. 706. But if the race be for a less sum than 50%. all wagers upon it, even though under 10., are illegal; Johnson v. Bann, 4 T. R. 1. See also Bidmead v. Gale, ante, 671. THE KING . The Proprietors of the BIRMINGHAM CANAL BY an act, 8 Geo. 3, for an inland navigation to Birmingham, Wedderburn moved, on behalf of Mr. Colmore, the proprietor of New Hall Ring and the lands adjacent, for a mandamus to compel the company to complete the navigation, according to the act of Parliament, by making a cut to New Hall Ring. Wallace shewed for cause, that the ground near New Hall Ring is hollow and spongy; that the navigation could not be completed these two years; and that the proprietors have by the act an option to begin where they please. Mandamus to execute one part of a power of Parliament, first, denied. granted by act Lord MANSFIELD, C. J.-There must be a strong case made to warrant such a mandamus. The present is a very weak one. The act imports only an authority to the proprietors, not a command. They may desert or suspend the whole *work, and, a fortiori, any part of it. The mandamus now [709] prayed must be negative as well as affirmative; not to carry the navigation the other way as well as to carry it this. Therefore no rule can be granted. ASTON, J., accord. WILLES and BLACKSTONE, JS., thought the application premature; that the Court ought not to grant a mandamus to compel them to make a cut to New Hall Ring first. But if, from sinister views, the commissioners refused hereafter to make any cut to New Hall Ring at all, that perhaps might be a ground for a mandamus when the rest of the navigation was finished (b). (b) Where the party applying for a mandamus has another specific remedy, the Court will not interfere; R. v. Bank of England, 2 Doug. 524; R. v. Bp. of Chester, 1 T. R. 396; ante, 26, n. (o): but if the remedy be not equally effectual, then the Court will grant a mandamus. And therefore it seems, that the fact of commissioners being liable to an indictment for not obeying an order of Sessions, directing them to set out a road, will not Rule discharged. prevent the Court's interfering by manda- Sessions may not quash a poor's rate, because no stock THE KING . The Inhabitants of WITNEY. ON appeal against a poor's rate the Sessions quashed it, because the manufacturers in the art of blanket weaving were not assessed for their stocks in trade, though they are for their lands and houses. It was stated, that, by the usage of the parish, such manufacturers had been constantly assessed to the proved to have land-tax, but never to the poor's rate, for such their stocks in in trade is rated; but, if particular persons are stock, and are not rated, may amend the rate, and submit the question on those particular cases to the Court. trade. Per Cur. This order of Sessions must be quashed, because it is not found that there are any manufacturers in the parish who have stocks in trade. And had it been so found, the Justices should not have quashed the whole rate but amended it, by inserting therein the particular persons whom they thought to be rateable. For this Court will not thus be induced to give an opinion upon such a general question, as "whether "stock in trade is liable to the poor's rate," but only determine the particular case before them. Order of Sessions quashed (c). (c) See R. v. Vandevald, ante, 212; Lead Company v. Richardson, ante, 389; R. v. Canterbury, ante, 667, and notes. [ 710 ] Proceedings on der (d). BIGBY V. KEnnedy. S. C. 5 Burr. 2643. AN habeas corpus was moved for and granted, Tuesday, 22d appeal of mur- May, to the sheriff of Kent and gaoler of Maidstone, to bring up the body of Matthew Kennedy with the cause of his detainer, who, on Friday, 25th May, being the morrow of the Ascension, brought the prisoner into Court, and returned that he was taken and detained in Maidstone gaol by virtue of a writ of appeal, tested the 30th of April preceding, brought by Anne Bigby, widow, against the said Matthew and Patrick his brother, for the death of John Bigby her husband, returnable the morrow of the Ascension; which writ was set forth in hæc verba. Matthew Kennedy was accordingly brought into Court within the bar; and Glyn, Serjeant, moved, that he be committed to the custody of the marshal; which was done accordingly. The appellant, Anne Bigby, then appeared in person: and Glyn, Serjeant, moved, that she might count against the appellee Matthew, and she delivered in a parchment, which (d) By stat. 59 G. 3, c. 46, appeals of murder, treason, felony, or other offences, are abolished; and therefore the learning upon this subject is now only a matter of curiosity the reader will find the forms : of the proceedings, and all the authorities referred to, in the celebrated case of Ashford v. Thornton, 1 B. & A. 405, which occasioned this statute. By s. 2, wager of battle in a writ of right is also abolished. |