Informations in nature of quo warranto denied after long acquiescence and other circumstances. TRINITY TERM,-7 GEO. III. 1767.-K. B. THE KING v. DAWES.-THE KING v. MARTIN. THESE were motions for cross informations, in the nature of writs of quo warranto, for the office of burgess of Winchelsea. Lord MANSFIELD delivered the opinion of the Court.There are two qualifications requisite to this office; residence, 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 101. 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. Apprentice assigned to A. and with B. on congoing to live dition to allow A. a guinea settlement by yearly, gains a ROSAMOND Cock, his wife, and three children were removed from Tavistock to Kelly. On appeal the Sessions reverse the order, stating, that the pauper was bound apprentice by the parish of Lamerton to Richard Rundle, with whom he lived several years in that parish. Then Rundle assigned him 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. with B. 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 (b). 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). (b) 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. Order of Sessions reversed. But see ante, 555, n. (m). (d) Burr: Sett. Ca. 266, 1 Wils. 158. L L tion offices, though resident in the corpora tion town. 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- elected. The defendant pleads his privilege as a practising attorney in the Common Pleas, and that, by the custom of that Court, no attorney ought to be drawn away to attend any other 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). (f) P. 37, 8vo. ed. (g) See Gerard's Case, post, 1123, and Vin. Abr. Attorney, (K 3); Com. Dig. Id. (B 16); Bac. Abr. Privilege, (A). (h) Prior v. Moor, 2 M. & S. 605, con Judgment for the defendant. tra, where the Court doubted the validity of the rule of 1654, and thought it only applied to the year then last past. See also Dyson v. Birch, 1 Bos. & P. 4; Byles v. Wilton, 4 B. & A. 88. defendant can THE KING v. EDWARDS and SYMONDS. S. C. 4 Burr. 2105. On attachment THE defendants were justices of the peace of St. Ives in Cornwall, and had evaded the signing of a poor's rate, in obedience to a writ of mandamus, by keeping out of the way, so as not to be served with the writ; and an attachment was granted for the contempt. not confess the contempt till the interrogatories are filed. 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 secutor's costs. THE KING บ. EDWARDS. But, per Cur.-The motion is irregular, and cannot be 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). Motion over-ruled. (i) See also R. v. Wheeler, ante, 311; R. v. Elkins, post, 640. MOORHOUSE v. WAINHOUSE. on herself for issue of the mar IN trespass; the defendants justify under the title of Samuel Settlement of Appleyard, to which the plaintiff's reply, and the defendants the wife's estate demur to the replication. The case, upon all the pleadings, life, remainder appeared to be this:-John Appleyard, and Martha, his wife, to the husband 1st December, 1725, by a deed to lead the uses of a fine, Hil. for life if any 12 Geo. 1, settled the premisses (being the wife's inheritance) riage so long 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 that should so long live; remainder to all such children in fee, as tenants in common. If Martha should die without such issue (k), or all such issue should die before twenty-one; then, (k)" This word such plainly confines the issue to issue of her by her then husband, and consequently at his death there could be none, unless she was enseinte; and therefore quære, whether the possibility of a posthumous child would prevent the vesting of the contingent remainder in fee, limited to the husband on the event of there being no issue of Martha by him; for it is sufficient if a remainder vest eo instanti, that the particular estate determines. If it did vest, then the subsequent recovery could not bar it [Doe v. Reason, cited 3 Wils. 244, and see Doe v. Holme, post, 777], unless Martha was tenant in tail, and it seems impossible to support any construction of the deed, by which she could take more than an estate for life in the moiety limited to the husband in fee on the contingency of her death without issue of the marriage: and if the possibility of posthumous issue did not suspend the vesting of the remainder to the husband in fee, nothing else could; for if the case be If the limitation had been, "if M. should issue of one moiety to him in fee, and of the other to the wife's relations; his remainder in fee does not arise, unless he survives his wife. MOORHOUSE v. WAINHOUSE. as to one moiety, to John Appleyard in fee, and as to the 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 had the makes a tenant to the præcipe for a recovery, which was 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 within five years: see Carter v. Barnar- (1) This case is adduced by Mr. Fearne Judgment for the plaintiff (1). 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. |