1832. Exch. of Pleas, fendants afterwards, and whilst said plaintiff was schoolmaster as aforesaid, upon the terms and stipulations aforeWILKINSON said, to wit, at said several times when &c., of their own wrong, broke and entered into the said dwelling-house and premises, with the appurtenances, and committed the several trespasses, &c. บ. MALIN. -- Rejoinders-To the replication to the second plea, that the said dwelling-house, &c. in the said second count of the said declaration mentioned, were not the freehold of the said M. J., &c. as trustees of a certain charitable fund, theretofore granted for (amongst other things) the relief of the poor of W. aforesaid, and in no other right or capacity whatsoever, -To the replication to the third plea, that the said dwelling. house, &c. were not used by the said J. Malin, &c. as such trustees as aforesaid, and by their predecessors, trustees of the said charitable fund, as and for a school-house for the education and instruction of divers poor children, of and belonging to W. aforesaid, and also as and for the residence of the schoolmaster of said school-house.-To the replication to the fourth plea, that the said plaintiff was not duly appointed schoolmaster upon the terms and stipulations in the said replication mentioned.--To the replication to the fifth plea, that the said plaintiff was not duly appointed schoolmaster of the said school-house by the then trustees of said charitable fund, upon the terms and stipulations (amongst other things) that the trustees should pay the plaintiff certain wages or salary of 401. annually, so long as he should continue such schoolmaster; and that the said plaintiff should have the peaceable occupation of the said dwelling-house and premises as and for his residence as such schoolmaster as aforesaid.-To the replication to the sixth plea, that the plaintiff did not remain and continue in such office, and so possessed of said dwelling-house and premises, &c. in manner and form as the said plaintiff had in his said replication to said sixth plea alleged.—To the replication to the seventh plea, the said defendants, T. 1832. WILKINSON v. MALIN. Hesom, T. Hancock, W. Quinney, W. Allibone, T. Hud- Exch. of Pleas, son, and A. Musson, protesting that the said M. Jephcott, J. Malin, C. Crowley, J. Cock, W. Ellard, H. Mills, and T. Ellard, did not, before the said several times when &c., and before the said W. Dester, T. Hesom, T. Hancock, W. Crupper, and J. Cock, or any or either of them, had any thing in the said premises, duly appoint the said plaintiff to the employment of schoolmaster of the said school-house, upon the terms and stipulations (amongst other things), in substance, that there should be paid to the said plaintiff certain wages or salary of 40%. annually, so long as he should continue such schoolmaster of the said schoolhouse as aforesaid; and that he, the said plaintiff, should be suffered and permitted to have the peaceable and quiet possession, use, occupation, and enjoyment of said dwellinghouse and premises, with the appurtenances, as and for his residence as such schoolmaster as aforesaid, until his dismissal from the said employment by a majority of the persons who for the time being should be seised of and in the said premises-for rejoinder, nevertheless, to said replication in this behalf, the said T. Hesom, T. Hancock, W. Quinney, W. Allibone, T. Hudson, and A. Musson, say, that all the said supposed interest and right of possession of the said plaintiff, of and in or to the said dwelling-house or premises in which &c. long before either of the said times when &c. in the second count mentioned, had been lawfully put an end to and determined, to wit, &c., yet the said plaintiff, although afterwards, to wit, at &c., in said second count mentioned, to wit, on the 21st of February, in the year 1831 aforesaid, to wit, at &c., duly requested by said defendants, the said T. Hesom, and T. Hancock, refused to deliver up possession of the said dwelling-house and premises, wherefore T. Hesom and T. Hancock, in their own right, and W., &c. as the servants of the said T. H. and T. H., committed the said several supposed trespasses in the seventh plea mentioned, &c.-To the replication to Exch. of Pleas, the eighth plea, that the said M. Jephcott, J. Malin, C. 1832. WILKINSON V. MALIN. Cowley, T. Cock, W. Ellard, H. Mills, and T. Ellard, did not before the said several times when &c., and before the said W. Dester, T. Hesom, T. Hancock, W. Crupper, and J. Cock, had any thing in said premises, duly appoint the said plaintiff to the appointment of schoolmaster of the said school-house as aforesaid, and that he the said plaintiff should be suffered and permitted to have the peaceable and quiet possession, use, occupation, and enjoyment of the said dwelling-house and premises, with the appurte nances, as and for his residence as such schoolmaster as aforesaid, until his dismission from the said employment by a majority of the persons who, for the time being, should be seised of and in the said premises.-To the replication to the ninth plea, that the said plaintiff, on the 25th December, 1830, was lawfully dismissed from his said office as schoolmaster.-To the replication to the last plea, that, on the said 25th of December, 1830, all the estate and interest of him, the said plaintiff, of and in the said supposed office of schoolmaster in the said replication to the said last plea mentioned, and of and in the said dwelling. house and premises in the said second count mentioned, had been lawfully ended and determined. On all these allegations, issues were joined in surrejoinders and rebutters. The cause was twice tried, and at the second trial, before Bayley, B., at the Spring Assizes for Warwickshire, in 1832, the following facts appeared in evidence. By deed, dated 12 Hen. 6, J. Hayward and M. his wife granted and conveyed divers messuages, lands, tenements, and hereditaments situate in Willoughby, and other places in the county of Warwick, to certain trustees therein named, and their heirs, upon trust to apply the yearly issues and profits thereof from time to time towards the repairs of the church of W. aforesaid, the payment of the 15ths, and relief of the poor in W., buying of armour and 1832. setting forth soldiers, mending of causeways and highways Exch. of Pleas, in W. and repairing of Sawbridge-bridge in the parish of W. aforesaid. By order of certain commissioners of charitable uses, confirmed by the Court of Chancery, 10th July, 7 Jac. 1, it was ordered that certain fraudulent leases of the said trust premises should cease, and that the then surviving feoffees of the same should convey to ten trustees, therein named, and their heirs, upon trust that the issues and profits should from time to time be employed to the aforesaid charitable uses, and that, in what manner the same should be employed by the said trustees, should be contained in the deed of conveyance; and that, when all the said feoffees but five should die, the then five surviving feoffees should make like conveyance, upon the like trusts, to the use of themselves and five other persons, inhabitants of W. aforesaid, of the best and most sufficient persons, and their heirs. By lease and release, of 22nd and 23rd of May, 1807, the trust premises in Willoughby, described as being now or late in the tenure or occupation of John Cowley and William Cowley, were conveyed by the then surviving trustees to ten new trustees. Long before 1816, a school had been established for the education of the poor of Willoughby, the expenses of which had been paid out of the above trust funds. The income of the charity having for many years averaged 400l. per annum, the trustees in that year, in exercise of the discretion given them by the said trust deeds, of applying the said funds generally towards the relief of the poor of W., applied part of such funds in the erection of a school-house, and other requisite buildings for the purpose of such school, on the lands in W. described in the deed of 1807. On the 26th December, 1816, the trustees for the time being appointed a schoolmaster and mistress at a salary of 407. per annum. WILKINSON บ. MALIN. Exch. of Pleas, 1832. WILKINSON v. MALIN. In September, 1818, all the trustees then remaining, being seven in number-viz. J. Malin, T. Ellard, W. Ellard M. Jephcott, C. Cowley, T. Cock, and, H. Mills, assembled for electing a schoolmaster, and, after some intimation of dissent by two of them, the other five concurred in electing the plaintiff, but no form of voting took place. The plaintiff was then told, he must be a married man; that the salary was to be 20l. to the master, and 20%. to the mistress; that it was required that he should be competent to teach the boys, and she the girls. The plaintiff was afterwards duly licensed to perform the office of schoolmaster in the school, by the bishop of the diocese. In January, 1819, the plaintiff and his wife entered on their duties, and became occupiers of the school-house and premises. By lease and release of the 26th and 27th of November, 1827, M. Jephcott, J. Malin, and T. Cock, C. Cowley, and W. Ellard, being the only surviving trustees, for the considerations therein mentioned, released and conveyed the messuage or tenement, land, &c., forming the trust premises in W., describing them as formerly in the tenure or occupation of John Cowley and William Cowley, and now of William Cowley, together with all and singular houses, &c. to the said messuage, &c. and premises, and to any and every of them belonging, or in anywise appertaining, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof, unto and to the use of W. Dester, T. Hesom, T. Hancock, J. Cock, W. Crupper, and their heirs, on trust that they, the said M. Jephcott, J. Malin, T. Cock, C. Cowley, W. Ellard, W. Dester, T. Hesom, T. Hancock, J. Cock, and W. Crupper, and their heirs, should employ the yearly income, rents, issues, and profits, of all and singular the said hereditaments and premises, from time to time, towards such charitable uses, intents, and purposes, as in the said original deed of grant mentioned. |