1822. The KING against KIRK. such means, and subject to such exceptions and conditions as are contained in the 13 G. 3. c. 78. Now, by the 70th section of the latter statute, the justices are bound to pursue the form given in the schedule thereto. Davison v. Gill. (a) The order in this case is copied from the form given in the schedule to that statute; and the question is, whether it sufficiently appears, on the face of it, that the consent of the owner of the lands, through which the new road was to pass, was obtained. Now every intendment ought to be made in favour of the order. It clearly appears that the consent of T. Jones, who had been the owner, was obtained; and once given, it could not be revoked. It was binding upon any person to whom the lands afterwards came. If this were not so, it would be most inconvenient; for it would be competent to a subsequent purchaser of the estate to revoke the consent given by the former owner, even after all the expence of making the new road had been incurred: besides, by 55 G. 3. c. 68. s. 3. the sessions are authorised finally to determine the appeal; and they have confirmed the order. (6) ABBOTT C. J. I am of opinion that this order must be quashed. It seems to me that the proper construction of the statute will be, to hold that there must be a consent of the person who is the owner of the estate at the time when the order is made. Now, here it does not appear, upon the face of the order, that the person whose consent was obtained was alive, either at the time when the order was made, or at any time after the (a) 1 East, 64. (b) But see Rex v. Sheppard, 3 B. & A. 417., where it is held, that, notwithstanding this, the certiorari is not taken away. proceedings proceedings had commenced; for it is not stated whether the consent was given before or after the justices had made their view. Our present decision will not affect the question, whether the owner of an estate may revoke a consent given by a former owner who was alive, and consenting at the time the order was made; we only decide, that it must appear on the face of the order that the consent of the person who is the owner at the time when the order is made, has been obtained. Order of sessions quashed. 1822. The KING against KIRK. The KING against The Inhabitants of ALL SAINTS, CAMBRridge. Wednesday, a year in a TWO justices removed Lydia Fowler from the parish of Where a pauthe Holy Trinity to the parish of All Saints, Cambridge. per resided for The sessions, on appeal, confirmed the order, subject to the opinion of this Court on the following case. pauper's maiden settlement was in All Saints' In 1793 she married William Fowler, a maker of chair- for two ponds, parish of A., The and during all that time had parish. two subsisting parol contracts bottoms and mats; and the question was, whether he or the rushes and flags growcir- which he was ing therein, to have the ex had any legal settlement. The following were the cumstances as to that point. In 1807 he hired a house clusive right of in the parish of St. Peter's, Cambridge, of the value of cutting at his 97. 10s. per annum, and resided therein with his above a year; during the same time he had two rate parol contracts for two ponds, or for the and flags growing therein, upon these terms: family pleasure: Held, that these were a sufficient tenesepa- ment (being together above rushes the value of 101. per annum) one of to confer a set the ponds was of the extent of three acres, in which he was to have the exclusive right of cutting the rushes and flags at his pleasure, but not of draining off the water; C 4 tlement in 4. 1822. The KING against The Inhabitants of ALL SAINTS, CAMBRIDGE. water; the owner had the right to use the water, or to drain it off, as he thought proper. For this W. F. was to pay 5s. a year to the occupier of the farm in which it was situated. The pond was not fenced off from the rest of the field, and the occupier's cattle, when depasturing there, used the pond for drinking at; but the rushes and flags were not such herbs as cattle would eat. The other pond was only about a quarter of an acre, and was occupied under similar circumstances, at the yearly rent of 5s., and two door-mats of the value of 2s. The next year W. F. agreed to pay 10s. for the same, but died before the rushes were all gathered. The contracts for the ponds subsisted during all the time that W. F. occupied the house in the parish of St. Peter's. The sessions thought this was not sufficient to establish a settlement in that parish, and confirmed the the original order. Starkie, in support of the order of sessions. This was a personal contract for the rushes, and not a tenement. The pauper's husband took no interest in the soil, but had a mere privilege of going upon the land to cut the rushes which he had bought. In Pincomb v. Thomas (a), it was held that the soil was not reserved out of a lease, by an exception of saleable growing woods; so, in Warwick v. Bruce (b), it was held that no interest in the soil passed by a sale of growing potatoes. And in the case of Rex v. Old Alresford (c), where the question was, whether the pauper gained a settlement by renting the fishery of a pond, with the spear, sedge, flags, and rushes growing in and about the same, at 107. per annum, the (a) Cro. Jac. 524. (b) 2 M. & S. 205, (c) 1 T. R. 358. Court Court decided, that the soil passed with the fishery; but the sedge, &c. was not relied upon, as passing the soil, either by the counsel or the Court. The cases of Rex v. Whixley (a) and Rex v. Stoke (b), proceeded on the ground, that the grass being the whole produce of the land, by a grant of that an interest in the soil passed. But even admitting this to have been a tenement, still the pauper's husband did not occupy, for 40 days, a tenement of the value of 10. per annum; for it must be presumed, that he began to cut the rushes immediately after taking the ponds: the value of the tenement would therefore decrease de die in diem. Rex v. Bowness. (c) Tindal and Storks, contra, were stopped by the Court. Per Curiam. There is no valid distinction between a lease of grass and one of rushes growing upon the land. This case is therefore similar to that of Rex v. Stoke. If this had been a bargain for any thing in a state to be severed, as in Warwick v. Bruce, it would have been a personal contract; but here, the pauper's husband had a right to all the rushes which might grow in the ponds during the year. That gave him a continuing interest in the soil for the whole year; and by renting those ponds, together with the house in the parish of St. Peter's, he held a tenement of a greater value than 107. per annum. It is found as a fact, that he resided in that house for more than a year; he therefore gained a settlement in that parish. The con (a) 1 T. R. 137. (b) 2 T. R. 451. (c) 4 M. & S. 210. sequence 1822. The KING against The Inhabitants of ALL SAINTS, CAMBRIDGE. 1822. The KING against The Inhabitants of ALL SAINTS, sequence is, that the pauper was improperly removed to the parish of All Saints; and that both the orders must be quashed. Both orders quashed. Thursday, November 14th. The KING against WADDINGTON. A publication THIS was an information by the Attorney-General stating Jesus Christ to be an impostor and a murderer in principle, is a law. Semble, that the 53 G. 3. c. 160. does not alter the common law, but only removes the penalties imposed upon persons denying the Trinity, by 9 and 10 W. 5. c. 32., such persons the benefits conferred upon against the defendant for a blasphemous libel. The effect of the libel set out in the information was to im libel at common pugn the authenticity of the Scriptures; and one part of it stated that Jesus Christ was an impostor and a murderer in principle, and a fanatic. The defendant was tried at the Middlesex sittings after last Trinity term, and convicted. Before the verdict was pronounced, one of the jurymen asked the Lord Chief Justice, whether a work which denied the divinity of our Saviour was a and extends to libel. The Lord Chief Justice answered, that a work speaking of Jesus Christ in the language used in the all other Pro- publication in question was a libel; Christianity being a part of the law of the land. now moved for a new trial; Chief Justice had misdirected the jury, by stating that any publication in which the divinity of Jesus Christ was denied was an unlawful libel; and he argued, that since the 53 G. 3. c. 160. was passed, the denying one of the persons of the Trinity to be God was no offence; and, consequently, that a publication in support of such a position was not a libel. testant dissent ers, by 1 W. & M. s. 1. c. 18., The defendant, in person, and urged that the Lord Аввотт |