tion, unquashed, would not have protected a Magistrate acting without jurisdiction; and can it be contended that he should be in a better case for the quashing of his conviction?) That must follow, at all events; for an unformal conviction, if unquashed, would not protect him; and, if quashed, it certainly would. The words "done in pursuance of an act," are to be construed literally; for when the Justice has not exceeded his authority, the enactment is useless. See the cases on 24 Geo. 2. c. 44, collected in 1 Chitty's Statutes, 645-Newman v. Bendyshe (4). In any view of this act, where the conviction has been quashed, the Magistrate is in a better position than where it is subsisting. [PATTESON, J.-Before the act, if a conviction, good on the face of it, was quashed on the merits, the Magistrate was liable to an action. Therefore the primary object of the act was, that although the conviction might be quashed on such ground, the action should not lie: but the words undoubtedly go further.] It is not, however, clear that the defendant has acted without jurisdiction. Mr. Dawson clearly had authority to entertain the information; and he issued a warrant to bring the offender, in the usual form, "before him or any other Justice of the Peace." The warrant was equivalent to a summons: for, suppose neither had been issued, the appearance of the party would cure the defect; and it cannot make any difference that the appearance was compulsory. By 3 Geo. 4. c. 23. s. 2, in all cases where two or more Justices are authorized to hear any complaint, one Justice is competent to receive the original information, and to issue the summons or warrant; and the adjudication being made by such two Justices, all subsequent proceedings may be enforced by either of them. Kelly and O'Malley, contrà. - The defendant had no jurisdiction, and therefore the quashing of his conviction does not protect him. "Under and by virtue of an act of parliament," means, where the Magistrate had jurisdiction; and is not at all of the same signification with the words "in execution of his office," in 24 Geo. 2. c. 44. The object of the stat. 43 Geo. 3. c. 141. was to protect Magistrates where a convic (4) 9 Ad. & El. 11; s. c. 8 Law J. Rep. (N.S.) M.C. 58. tion might have been quashed on the ground of error in the facts, unless malice and want of reasonable cause were averred and shewn -Paley on Convictions, 318. The case of Baylis v. Strickland seems to have been argued simply on the question, whether the Magistrate had jurisdiction or not: here, there can be no doubt that the defendant had none. The statute directs a summons, and none has been given, but an old warrant of one Magistrate put into operation a year afterwards by another. Cur. adv. vult. LORD DENMAN, C.J. now delivered judgment. This was an action of trespass for false imprisonment, in which there was a nonsuit, with liberty to move to enter a verdict for the plaintiff for ten pounds damages, found by the jury. The plaintiff had been convicted before the defendant, who was a Justice of the Peace for Suffolk, and a Commissioner of Taxes. The conviction had been quashed on appeal at the Sessions. The defendant contended, that, under the stat. 43 Geo. 3. c. 141, an action of trespass would not lie, but an action on the case only; and on that ground the nonsuit proceeded. The plaintiff contends, that the statute does not apply where there is a want of jurisdiction, as was laid down in Massey v. Johnson (5); and this case turns entirely on the question, whether the defendant had jurisdiction or not. The conviction was for killing a hare, not having a game certificate, on the 2nd of October, 1836: it proceeded on the stat. 52 Geo. 3. c. 93. sched. r. 1, 12, and 13, and was dated on the 25th of October 1839. The 13th rule in that schedule provides, in substance, that it shall be lawful for any one Justice of the Peace, such Justice also being a Commissioner of Taxes, on information or complaint to him made within three calendar months after the offence shall be committed, to proceed to hear in a summary way. It was contended by the plaintiff, that, under the rule, the conviction must be within three calendar months of the offence, whereas, in the present case, it was not until more than a year afterwards. It was answered, that the rule only requires the information or complaint to be within three calendar months; and in order to shew that the proceedings (5) 12 East, 67. were correct, the defendant put in the original information, dated the 2nd of October 1838, the very day when the offence was committed, on a warrant of apprehension, not a summons, dated the same day. The information, however, was made, not to the defendant, but to a Mr. Dawson, who was a Justice of the Peace, and a Commissioner, and the warrant was signed by Mr. Dawson only. The plaintiff had absconded on the 2nd of October 1838, and did not return until after three calendar months-namely, in March 1839. He remained at home until the 25th of October 1839, when he was brought before the defendant, having been apprehended on Mr. Dawson's warrant. Passing over the illegality of issuing a warrant when the rule requires a summons, and enables the Justices to proceed in default of appearance, and assuming that the limitation of three calendar months applies to the information or complaint only, the question here arises, whether the defendant had jurisdiction to proceed upon the information made to Mr. Dawson. It may be conceded, that, in general, when no provision is made to the contrary, the original information or complaint may be made to one Justice, and another may hear and determine the matter. The stat. 3 Geo. 4. c. 23. s. 2, in the latter part of that section, recognizes such a course of proceeding very distinctly. This case, however, depends, not on the general rule, or upon that statute, but upon the words of rule 13, in 52 Geo. 3, which gives the jurisdiction. The words are, "that it shall be lawful for any one Justice, being also a Commissioner, to summon the person accused to appear before him :" not adding "or any other Justice," or "Commissioner," or any other equivalent words; and on appearance or default to proceed, &c. We are of opinion that this rule does not authorize any Justice to hear the matter, except that one to whom the information or complaint is made; and that the stat. 3 Geo. 4. c. 23. s. 2. does not make any difference, inasmuch as that statute contains no enactment that one Justice may summon and another hear, but only recognizes such a course of proceeding incidentally, the enactment being only that, when the law requires two or more to hear, one only may take the information. This being the construction which we feel ourselves bound to put on rule 13, it follows that the defendant had no jurisdiction in the particular case, and that the stat. 43 Geo. 3. c. 141. does not apply. The rule must, therefore, be made absolute, to enter a verdict for the plaintiff for 10l. 1842. Jan. 22. THE QUEEN D. THE INHAB- Settlement by Estate-Devise in trust to sell, and divide the Monies between Children. Testator devised his real estates to trustees, to sell and stand possessed of the monies in trust to divide between his nine children; the same to be to the sole and separate use of such daughters as should be married before his decease. The pauper married one of the daughters before the death of the testator. After the testator's death, the pauper and his wife resided in a house, part of the property, for more than forty days, paying rent to the trustees; after which the property was sold, and the money divided :-Held, that the pauper gained no settlement (1). This was an appeal against the removal of John Inge, from the parish of St. Margaret, Leicester. The Sessions quashed the order, subject to the opinion of this Court on the following CASE. John Norton, of Leicester, being seised of fourteen freehold houses, situate in the parish of St. Margaret, in the borough of Leicester, by his will, bearing date on or about the 24th of October, A.D. 1832, and duly executed and attested to pass real estates, after directing the payment of his debts and funeral and testamentary expenses, and certain pecuniary legacies, which he thereinafter bequeathed, out of his personal estate, gave, subject thereto, all his personal estate, and also gave, devised, and bequeathed all his lands, messuages, tenements, hereditaments, and real estate whatsoever and wheresoever, unto Richard Rawson and Thomas Cooper, their heirs, executors, administrators, and assigns for ever, upon trust that the said trustees, or the survivor of them, did and should, as (1) Apparently overruling The King v. Natland, Burr. S.C. 793; see 2 Chitty's Burn, 696, and Gambier on Settlements, Greenwood's edition, 191. soon as conveniently might be after his decease, sell and dispose thereof, either by public auction or by private contract, for the best price that could be obtained for the same, and did and should stand possessed of the monies arising from such sale, after payment of the costs and expenses attendant thereon, upon trust to pay and divide the same equally between and amongst the testator's nine children, being five daughters and four sons, respectively enumerated in the said will. And as to the shares of such of the testator's said daughters as should be married at the time of his decease, the testator gave and bequeathed the same to and for their own sole, separate, and absolute use and benefit and advantage; and he directed that their respective receipts alone should be sufficient discharges for the same. The trustees were authorized to reimburse themselves, out of the trust monies, the expenses of executing the trusts of the said will; and their conveyances of the devised premises to the purchasers, and their receipts for the purchase-money, were declared to be effectual and sufficient. The said John Norton died on or about the 23rd of November 1832. The real estate consisted of the freehold houses above mentioned. John Inge, the pauper, was married to Ann Norton, one of the testator's nine children, mentioned in his said will, in the year 1823. Some time prior and up to the testator's death, the pauper, with his wife and family, occupied one of the said houses, in the said parish of St. Margaret, as his tenant, at the rent, first of 2s., and afterwards at 1s. 10d. per week. After the testator's death, the pauper continued to occupy the same house, and paid the same weekly rent of 1s. 10d., as tenant to the said trustees, to a collector employed by them to collect the rents for all the said fourteen houses. The trustees every month divided the whole sum so collected equally amongst the said nine children of the testator, and the share received by the pauper, on such division, was generally 8s. or 10s. per week. The pauper resided more than forty days after the death of the testator in the said house, so occupied by him as tenant as aforesaid, in the parish of St. Margaret aforesaid. The pauper continued to reside, and the trustees to receive and divide the rents in the manner above mentioned, for nearly two years after the death of the said testator. The testator's real estates were sold by the trustees in the year 1834, and the proceeds of the sale, after payment of the expenses attendant thereon, were equally divided amongst the testator's said nine children. The pauper received his wife's share, amounting to 54l. 19s. The question for the opinion of the Court was, whether, under these circumstances, John Inge obtained a settlement in St. Margaret's, Leicester. White and N. Goldsmid, in support of the order of Sessions. This was a settlement, according to The King v. Offchurch (2), The King v. Wivelingham (3). The devise operated to give the nine children equitable interests as tenants in common in fee; and they might at any time have called on the trustees to convey to them as such. [COLERIDGE, J.-Then how could the nine have had sole and separate estates?] A conveyance would have been ordered in Chancery-Lewin on Trusts, p. 496, Pearson v. Lane (4). The King v. Aslackby (5) is precisely in point. Land was devised to trustees for sale, and payment of the money to the wife for her own use and benefit; and it was held, that she gained a settlement by residence in the parish, the occupation by the trustees not being adverse to her. It will be contended, that the Court has taken a distinction between equitable estates and mere equitable rights -2 Nolan, 100. But here, as the nine children could have required a conveyance, they had estates. [COLERIDGE, J.-Could that have been done without the consent of all ?] Perhaps not; but there is no doubt, if they did all require it, the conveyance would be ordered; and it cannot make any difference in principle, whether one exercises the option or nine. They cited also The King v. Berkswell (6), The King v. Woolpit (7), The King v. Llantilio Grosenney (8). Mellor and Kenneth Macauley, contrà.The difference between this case and The King v. Aslackby consists in the circumstance of there being nine legatees instead of one. No one, singly, could have compelled the trustees to convey, or had anything more than an equitable right; and no child could obtain a settlement until all had appeared and made their election-Fletcher v. Ashburner (9). Neither of the children could have selected one particular house, or portion of the property. Here, the legatee was also a married woman, which makes an exception to the doctrine of election-1 Roper on Legacies, 474, and the cases there cited. [COLERIDGE, J.- The evidence seems to be against an election in fact.] It shews that the pauper inhabited the house as tenant, not owner. The cases cited are all distinguishable on the same grounds -The King v. Widworthy (10). The King v. Berkswell is in point. The King v. Horsley (11). [PATTESON, J. referred to The King v. Natland (12).] That case is also distinguishable on the facts; the pauper paid no rent. [PATTESON, J.-The devise was not to take effect until the death of the widow, and after her death he did pay rent.] From the manner in which the case is reported, it is not easy to see on what ground it was decided. Mr. Justice Gould, to whom it was referred, may have thought that there was some act of election or some agreement not revoked. The recognition of his decision by the Court, was only to the effect that the Court would not interfere where a Judge has certified. [COLERIDGE, J. referred to the abstract of the case in Gambier on Settlements, Greenwood's edition, p. 191.] They also cited The King v. Geddington (13). LORD DENMAN, C.J. The only authority, in support of this settlement, is The King v. Natland, and I think that case does (9) 1 Bro. C.C. 500, cited in 1 Williams on Executors, 414. (10) Burr. S.C. 109. (11) 8 East, 408. (12) Burr. S.C. 793. (13) 2 B. & C. 129. not stand on very good ground. A Judge, under the old system of reference, was in the nature of an arbitrator; and the Court only decided that, being so, his award was not to be appealed from. PATTESON, J.-To make The King v. Natland an authority, it would be necessary to shew, that the statement of facts there is correct, which may perhaps be doubted. And all the other cases, where settlements have been obtained under this kind of devise, have been where one person only was entitled; in The King v. Wivelingham, by agreement; in the other cases by the death of parties, and so forth. It appears here that the pauper never did reside on the property as his own or his wife's, but always as a tenant, paying rent. COLERIDGE, J.-There appear to be two grounds for decision here. It appears that the pauper resided; but in what right? In point of fact, certainly not in respect of his supposed equitable estate, for he paid rent to those in whom the legal estate was vested. Secondly, it is tender ground for this Court to take, when it looks into equitable interests at all. But there is one broad line of distinction: an equitable estate may have been obtained where there is something to entitle the party at once to a decree in equity. But here it is uncertain what equity would do. In the next place, also, it was clearly the object of the testator here to exclude the husband altogether; and there is no evidence of the wife's making any election, or of the other parties. It is not necessary to rest this case on The King v. Geddington, of which the authority, as we know, has been much doubted. WIGHTMAN, J.-In order to obtain a settlement, the pauper must either have had a legal estate, or an equitable which he could at any time convert into legal. Here, to use the words of Abbott, C.J., in The King v. Berkswell, "The pauper had no such equitable interest as would have entitled him to say, 'I shall come and live in this place, and if you do not allow me to do so, a court of equity will enforce my title.'" Here there were nine tenants in common, and it seems necessary that all should concur; one could not convert without the will of the rest. Order of Sessions quashed. { THE QUEEN V. THE INHABIT- 1842. County Bridge, When Structure part ofRepairs-Indictment. Certain parts of a structure will not be necessarily excluded from being considered as parts of a county bridge, repairable by the county, because water does not at all times flow under them: and, therefore, where it was found on a special case, that the whole structure contained forty-two arches; that under five arches at the eastern end, the river Trent flowed; that under one of eight at the western end, a brook always flowed; that the other twenty-nine arches were interspersed throughout the space between the fire and eight arches; that in times of flood the water flowed under all the arches ; that under the greatest number of arches between the eighth and the fifth, there was always stagnant water, but under the others, sometimes no water; and the case further found, that the whole of the structure from beginning to end, (containing the fortytwo arches,) had from all time been called Swarkestone Bridge, and the county of Derby had from time immemorial repaired the whole structure, and the road and battlements from beginning to end: this Court held, that judgment should be entered for the Crown, where these facts were proved upon an indictment against the inhabitants of the county for not repairing some of the arches, between the five at the eastern, and the eight at the western end of this bridge. Whether an arch, or a number of arches, constructed over stagnant water, may, under certain circumstances, be considered a bridge -quære. Indictment. The first count stated, that there was a common and public bridge, called Swarkestone Bridge, in the parish of Stanton-by-Bridge, in the county of Derby, in the common Queen's highway, being a common highway for persons on foot, and with horses, coaches, carts, &c., at all times of the year. It then charged, that the bridge was ruinous, broken, dangerous, &c., for want of repair, and that the inhabitants of the county of Derby of right have been, and still of right are bound to repair and amend the said bridge, when and so often as it shall be necessary. The second count stated, that from time immemorial there was a common and ancient Queen's highway, leading, &c., and that a certain part of the said highway, in the parish of Stanton-by-Bridge, lying and adjoining the east end of the bridge, and within the distance of 300 feet thereof, and two certain other parts (describing them), both within the same distance of the above bridge, were ruinous, &c.; and that the inhabitants of the county of Derby ought to repair the same. The third and fourth counts were similar to the second, and charged the non-repair of certain other parts of the highway, in the same parish, and lying within the distance of 300 feet from Swarkestone Bridge. The fifth count stated, that from time whereof, &c., there was a common, ancient highway, leading, &c., and that a certain part, beginning at 300 feet westward from a certain river called the Trent, and so continuing westward for the length of 876 yards, &c., was out of repair; and that the inhabitants of the whole county of Derby have from time whereof, &c., hitherto been used and accustomed, and have of right repaired and amended the said public highway, when necessary, and still of right ought to repair and amend the same, &c. Plea-Not guilty. This indictment was tried at the Summer Assizes, for the county of Derby, in 1839, before Lord Abinger, C.B., when the jury found that the whole of the structure, more particularly described below in the case, was known and called by the name of Swarkestone Bridge, and that the county had immemorially repaired the road, battlements, and arches thereof. A verdict was taken for the Crown, subject to the opinion of this Court, upon the following CASE. The structure which forms the subjectmatter of the several counts of the indictment, is about 1,275 yards in length, lies wholly in the county of Derby, and extends from the village of Swarkestone, on the east bank of the river Trent westernly, towards the village of Stanton-by-Bridge, both in the county of Derby; and the said structure is situate as described in the indictment, and is a common Queen's highway, as stated in the indictment, and is of great public utility. The whole structure contains forty-two |