Page images
PDF
EPUB
[blocks in formation]

land which is bounded on the south by a fence in good repair. In June 1861 six or seven of the plt.'s beasts in Hail-moor crossed the river Irt, and got into the deft.'s land called Bridge-green, the fence being out of repair, and thence from Bridge-green, over the fence that was in good and perfect repair, into the deft.'s arable land, where they did damage. The deft. caused them to be distrained as damage feasant and impounded, for which this action was brought. The cause was tried at the last Carlisle summer assizes, before Wilde, B., who told the jury that it was the deft.'s duty to maintain a fence in Bridge-green along the margin of the river, and this in many places was shown to be level with the ground. If the jury believed the plt.'s cattle crossed the river into Bridge-green and thence into the corn field, it was immaterial whether the fence of the corn field or arable land was in repair or not. The jury returned a verdict for the plt. for 17. 10s. 6d. A rule nisi having been obtained for a new trial on the ground of misdirection, first, in directing the jury that it was immaterial what was the state of the fences of the field, or whether the cattle were taken damage feasant; secondly, in discharging the jury from giving any verdict as to the second count,

|

[Ex.

through a defective fence, gets into another's field, and stakes itself in breaking through a strong inner fence, could the owner of the bullock maintain an action for the injury to the bullock against the occupier of the first field by reason of his defective fence?] Possibly he might. [WILDE, B.-And the owner of the fence damaged against the owner of the beast for the injury to the fence?] Perhaps so; but the learned judge at the trial told the jury in effect that the condition of the second fence was immaterial. It is admitted the deft. was bound to fence as against his neighbour's field; that he did. Here was a perfectly good fence as against the plt.'s cattle, and the deft. is not to suffer because his fence was further in than may have been desired, or because there were not two fences. POLLOCK, C. B.-I am of opinion that this rule should be discharged. It was a motion for a new trial on an alleged misdirection of my brother Wilde to the jury. When application was made for the rule it certainly appeared to me to be not only a case of hardship upon the deft., but one which was worthy of some consideration. After hearing the argument upon it, I have come to the conclusion that my brother Wilde was quite correct, and that it is in accordance with the whole policy of the law of England upon the subject. When any wrong is done or damage sustained, the law inquires when was the first wrong done, who was the cause of first setting it in motion, or what was the origin of the mischief? In this instance the owner of the close called Bridge-green was bound so to fence it as to prevent his neighbour's cattle from getting into it. This it appears he neglected to do; there was little or no fence at all there in some places; the consequence was, that the plt.'s cattle got into the close called Bridge-green, and thence on over a fence into the deft.'s corn field, where they were distrained by him as damage feasant. It was argued for the deft. that it was not a necessary consequence of their being on the corn land that their original escape was by the deft.'s default in fencing Bridge-green as against the river; but, if a man dig a pit in a highway, it is not a necessary consequence that a passenger should fall into the pit, but if he does, it is sufficient if the accident is the result of something that ought not to be done. I think the learned judge's summing-up was in this case quite correct.

Mellish, Q. C. and T. Jones showed cause against the rule. Where cattle escape through the defect of one man's fences into that person's land, and thence into the land of another, doing damage, the owner of the cattle would be liable to an action, and he would have his remedy over against the party who neglected to keep good the defective fence: (Powell v. Salisbury, 2 Yo. & Jer. 391: Holbach v. Warner, Cro. Jac. 665.) The person who ought to have kept the fences, but did not, is liable for all the consequences. If therefore the land into which the plt.'s cattle escaped over the sound fence had not been the deft.'s, but another person's, the plt. would have been liable to that third person for the damage his cattle had done, and the deft. would have been again liable to the plt., because it was in consequence of his defective fence the cattle first escaped. It was the deft.'s own neglect that the cattle first got into Bridge-green, from his omission properly to fence against the river, and having reached Bridge-green through the deft.'s defective fence, the plt. is not liable to him for their subsequently getting into the deft.'s corn field over a good fence. It thus avoids a circuity of action. Nor is it to be taken as certain that, if the cattle had not been permitted to escape into the first BRAMWELL, B.-I am entirely of the same opinion. field, they would have gone over the good fence The deft. was bound to fence his own land as between into the corn field at all; they may not have broken himself and the plt. The deft. is as much obliged to fence through a good fence in the first instance. But having his land to keep the plt.'s cattle in his (the plt.'s) own once got out through a defective fence, there was then land as he is to keep his (the deft.'s) own cattle upon no stopping them, and the person whose first fence is his own land. If any injury arises from his neglect, defective, and by which they escaped, would be the party injured has a right to complain of the injury ultimately liable. The deft. was, in fact, as much which is the necessary consequence of the omission to bound to fence to keep his own cattle in his own field as perform that duty. It is conceded that, according to to keep the plt.'s out. [BRAMWELL, B.-I do not un- the authorities, if the plt.'s cattle being by deft.'s derstand the deft. will say that he is not bound to keep default in his land, had escaped therefrom into the up a sufficient fence; what he says is, that there was close of a third party and had there sustained an ina proper and substantial fence against the corn field jury, the plt. could maintain an action against the deft. into which the plt.'s cattle escaped and did the damage.] for damages in consequence of the injury, and on that Edward James, Q.C. (Kemplay with him) in sup-ground, to avoid circuity of action, the deft. should not port of the rule. The learned judge's direction to the jury was erroneous; the deft.'s land was properly fenced, and it can make no real difference whether the fence was against the river in Bridge-green or a little further in-against the corn field; the cattle broke over a good substantial fence, and thus got into the corn field, where the damage was done of which he complains; probably for anything done by the cattle in Bridge-green he may have had no just ground of complaint. [POLLOCK, C. B.-On the contrary, if they had sustained any injury there he may have been liable.] There being a sound fence against the plt.'s cattle, and over which they broke into the deft.'s corn, the plt. is liable. [WILDE, B.-If one man's bullock,

be at liberty to impound the plt.'s cattle damage feasant, and then leave the plt. to a cross-action against him for the injury sustained by the impounding. The damages to be occasioned is the not unnatural consequence of the deft.'s own omission to fence the first close, called Bridge-green. No man should complain of another's act when it is the immediate result of his own negligence. Suppose the plt.'s bull escaped into the deft.'s first field from a neglect of the deft. to fence his land, and while in the first field, where he had escaped from the deft.'s neglect to fence, from some excitement or other he broke down a sound fence, and got over into a second close, where he would not otherwise have gone if he had not been induced to do

[blocks in formation]

so when in the first field; surely the deft. could not complain of it.

CHANNELL, B.-I am also of opinion that this rule should be discharged. We are asked to grant a new trial on the ground that the jury were misdirected; but I think the ruling of my brother Wilde was quite correct. Assuming in this case that the second or inner hedge, as it has been called, was a strong and sufficient one, the question is, whether the deft. can resist this action, it being clear that the cattle would not have escaped from the plt.'s land but for the defect of the deft.'s fence to his close Bridge-green. It was the deft.'s duty to keep good that fence, and but for his default the plt.'s cattle would not have escaped, and their doing so was the natural, if not the necessary, consequence of his omission, and therefore the deft. had no right to distrain them. I do not think it distinguishable from the case I put and compared it to during the argument-that when the deft. complains of the plt.'s cattle breaking into his land and then over an inner fence into his corn, the plt. may very well reply, "My cattle were in a pound, and you opened the gate from whence they escaped and did the damage complained of-you were the cause of it."

[Ex.

in the said closes doing damage there to the deft., and eating, and depasturing, and treading down the corn, grass, and herbage of the deft. there then growing, the deft. then seized and took the said cattle in the said closes, so doing damage as aforesaid, as a distress for the said damage, and led and drove the same out of the said closes, in which, &c., to a certain common pound, and there impounded the same, and kept the same impounded there, pursuant to the statute in such case made and provided, until the plt. paid the said costs to have the same released, as and for, and the same being a reasonable satisfaction for the said damage so done, as it was lawful for the deft. to do for the cause aforesaid, he, the deft., using no unnecessary force or violence, and doing no unnecessary damage on such occasion, which is the alleged detention and grievance in the said second count mentioned.

Replication. And for a second replication to the fifth plea the plt. says, that, after deft. had so impounded the said cattle, the plt. was ready and willing, and then tendered and offered to pay to the deft. the sum of 11. 2s. 4d., which said sum of 17. 28. 4d. was a reasonable and sufficient satisfaction and amends for the damage done by the cattle, as in the fifth plea WILDE, B.-I am of the same opinion, that the mentioned, and all that the deft. was entitled to derule should be discharged. I am not sorry that the tain the said cattle for, and all things were done and question has been discussed, as it has proved to be one happened to make the said tender a good tender, and of some novelty; but I retain the same opinion now, to entitle the plt. to sue deft. for the subsequent deafter having heard the arguments, as I entertained attention hereinafter mentioned. And the plt. says that the trial. Ordinarily speaking, if cattle stray and damage is done by them, the owner is liable; but in this case it was the deft.'s neglect to repair his fence that was the cause of the cattle escaping in the first instance. The deft. was bound to fence the first field in order as much to keep the plt.'s cattle out of it as his own in; he did not do so, and the plt.'s cattle having got into the deft.'s close called Bridge-green, over a defective fence which it was the deft 's duty to keep good, they escaped into another field of the deft., where the damage was done which was complained of. I do not think the plt. is liable for that damage, either according to common sense or the common principles of justice. Rule discharged.

Plt.'s attorney, C. E. Abbott, 52, Lincoln's-innfields.

Deft.'s attorney, Gregory and Co., Bedford-row.

Wednesday, Jan. 22. SINGLETON v. WILLIAMSON (see the previous case). Distress damage feasant-Tender of amends after impounding too late-Detinue to recover the cattle after such tender.

Where cattle are distrained as damage feasant and impounded, and the owner after the impounding tenders amends-Such tender is too late to enable him to maintain detinue for the recovery of the cattle.

This was an action of detinue to recover cattle which had been distrained damage feasant and impounded; and after the impounding the plt. had tendered ample compensation for the damage the cattle had done, which deft. refused to accept.

The declaration stated that the deft. detained from the plt. the plt.'s cattle, that is to say, two other bullocks, whereby they were injured, and plt. was put to costs in and about endeavouring to procure a return of them, and the plt., under the last count, claims a return of the cattle therein mentioned, or their value, and 201. for detention, and under the rest of the declaration he claims 501.

Plea. And for a fifth plea to the second count, deft. says that before and at the time of the alleged detention the deft.was lawfully possessed of closes of land situate in the parish of Gosforth, in the county of Cumberland, and because the said cattle were then wrongfully

the deft. would not accept the said sum of 11. 2s. 4d. when so tendered as aforesaid, but afterwards wrongfully detained the said cattle from the plt., which is the detainer complained of,

Demurrer thereto and joinder in demurer.

Edward James, Q.C., in support of the demurrer, contended that a tender after impounding, when goods are in custodiá legis, comes too late, and is not the subject of an action of detinue. The tender is a nullity, because it comes too late after the cattle have been impounded; the owner may get them back by replevin, when the opponent would obtain a bond as a security, and he should have adopted the remedy the law has provided by suing out a replevin. Pilkington v. Hastings, Cro. Eliz. 813, shows that a tender after impounding is too late. The law is clearly stated by Lord Coke in the Six Carpenters case, 8 Co. Rep. 147, that tender upon the land before the distress makes the distress tortious; tender after the distress and before the impounding makes the detainer and not the taking wrongful; tender after the impounding makes neither the one nor the other wrongful, for then it comes too late, because then the cause is put to the trial of the law to be there determined. But after the law has determined it, and the avowant has return irreplevisable, yet if the plt. makes him a sufficient tender he may have an action of detinue for the detainer after, or he may, on satisfaction made in court, have a writ for the redelivery of his goods. In Gulliver v. Cousens, 1 C. B. 788, where cattle were distrained as damage feasant, the owner paid under protest an excessive sum demanded, and then brought an action for money had and received to recover it back: it was held the action would not lie without a tender of sufficient amends. Tindal, C. J. said: "When the plt. found he was too late to make a tender, so as to entitle himself to replevy, his proper course was to make a tender of sufficient amends to cover the damage sustained; and in the event of the tenant refusing to accept the sum tendered and deliver up the sheep, he should have brought detinue [the reporter adds, i. e., upon a tender before the impounding], for they were held by the deft. merely as a pledge." Maule, J. there also adds: "If a sufficient tender had been made before the impounding, the deft. would have been bound to restore them, otherwise not." also referred to Thomas v. Harris, 1 Man. & Gr. 693,

He

Ex.]

GRUBB v. THE INCLOSURE COMMISSIONERS OF ENGLAND AND WALES.

to the C. L. P. A. 1852, and the commissioners' report upon such proceedings before the Act was passed. Mellish, Q.C. (T. Jones with him), for plt., was then called upon by the court.-He contended that on a tender after impounding detinue may be maintained, though the tender is too late for replevin. That the reporter's note in Gulliver v. Cousens,1 C. B. 796, is a mistake for the following reasons: first, because it appears from the report, 14 L. J. 215, C. P., that the cattle had been impounded before the tender; and secondly, because from Evans v. Elliott, 5 Ad. & Ell. 142, it is quite clear that a tender made after the taking, and before the impounding, is not too late for replevin. That the expression used in the judgment in Glynn v. Thomas, 25 L. J. 128, Ex., line 22-23, must have been taken incautiously from the reporter's note in Gulliver v. Cousens. That Lowring v. Warburton, 28 L. J. 31, Q. B., shows that a special count for detaining will lie, and there is no reason why detinue should not. That the law allows a distress as the mode of obtaining compensation, and if the party is not bound to accept the compensation he may hold on for ever, unless plt. replevies, and after having necessarily failed in the action of replevin makes a tender, and thereby entitles himself to maintain detinue according to what is said in the Six Carpenters' case. That the law abhors unnecessary litigation, and may safely hold that an action of replevin is not a necessary preliminary to a tender. It has been held that no other action except detinue could be maintained; but there is no case in which it has been held detinue will not lie; the proceedings in replevin do not ascertain the damage, and the sheriff who detains for the distrainor only acts for him, and if the owner of the cattle is ready and willing, and offers, after the impounding, amends for the damage, why is he not to be at liberty to do so and have his cattle returned?

James, in reply, referred to Glynn v. Thomas, 11 Ex. 870; Ellis v. Taylor, 8 M. & W. 415; and Ladd v. Thomas, 12 A. & E. 128. No doubt there are difficulties; but the law is so. After impounding, the deft. does not detain, and has not the possession.

POLLOCK, C. B.-I am of opinion that the deft. is entitled to our judgment upon this demurrer. The books and authorities upon the subject have existed for so long a period that we are not now at liberty to overrule them. The law appears to be, that a tender of amends for damage done by cattle distrained damage feasant after they have been impounded, is too late, because they are then in the custody of law, and not of the deft., so that a tender after impounding may be as ineffective as it would in any other case be after action brought. The plt. therefore cannot maintain detinue.

MARTIN, B.-It seems very strange that, when a person's cattle have been distrained as damage feasant and impounded, the owner of the cattle should not be allowed to tender to the distrainor full compensation and amends for such damage, and get back his cattle. Oftentimes, perhaps, no real damage has been sustained, and yet the owner, after impounding, cannot get back his property without proceedings in replevin. The law may be so, and it may be a very absurd law; but it appears to be the law, and we are bound by it.

CHANNELL, B.-I also think our judgment must be for the deft. The authorities are so strong that we cannot get over them, and the court must abide by them. I was struck at first with the dicta of Tindal, C.J. in Gulliver v. Cousens, but the observations to which I refer were not at all necessary for the decision of the case then before the court.

WILDE, B.-I am of the same opinion. The law is, that a tender of amends, after impounding cattle distrained damage feasant, is too late. If so, the owner cannot maintain an action of detinue against the distrainor

[Ex. CH.

to recover the cattle, the same being then not in the possession of the deft., but in the custody of the law. We cannot alter the law as so long existing, and decide in favour of the replication, without overruling that law. Whatever practical inconvenience may arise from it we cannot disturb it. Judgment for deft. Plt.'s attorney, Mr. C. E. Abbott, 52, Lincoln'sinn-fields.

Defts. attorneys, Messrs. Gregory and Co., Bedfordrow.

A

EXCHEQUER CHAMBER.
Reported by W. MAYD, Esq., Barrister-at-Law.

ERROR FROM THE COMMON BENCH.

Friday, Nov. 29.

GRUBB v. THE INCLOSURE COMMISSIONERS OF
ENGLAND AND WALES.

Inclosure Acts, 8 & 9 Vict. c. 118, and 11 f 12 Vict.
c. 99-Provisional order-Power of commissioners
to set out private roads over allotted lands.
provisional order, made under the Inclosure Acts,
ordered certain land to be allotted to the pit. in lieu
of his right in the lands to be inclosed, but the
order did not expressly exempt such allotment from
having a private road made over it:

Held, that the commissioners had power to order the valuer to set out a private road over such land.

This was a rule to set aside a writ of prohibition issued out of the Petty Bag-office, prohibiting the Inclosure Commissioners from confirming an award about to be made by them in the matter of a certain inclosure. From the affidavits it appeared that an application had been made to the Inclosure Commissioners by Lord Carrington and the plt. Mr. Grubb to sanction the inclosure of certain lands of the manor of Hughenden, in the county of Buckingham, and the usual proceedings required by the Inclosure Acts having been made, the said commissioners, on the 5th June 1856, issued their provisional order, by which they declared the following, amongst others, to be the terms and conditions upon which they were of opinion that the proposed inclosure should be made; that is to say, "that Piggott's-common and part of Spring-coppice, High-coppice, North Dean Bottom, Willow-coppice, Drift-way, together with all wood and underwood now growing on such tracts proposed to be inclosed, except Naphill-common, Greenhill and the common fields, be allotted to Edward Grubb, Esq., in lieu of his right and interest in the lands to be inclosed." "That Chappell-hill, Bryants-bottom, Denner-hill-coppice, bottom of Widdenton-hill and Dennerhill-common, containing together 99a. Ir. 8p., be allotted as follows; that is to say, that an allotment equal in value to one-seventh part thereof, after deducting the allotment of two acres for the labouring poor, and the allotments (if any) for defraying the expenses of the inclosure, be made to the Riglit Hon. Benjamin Disraeli, in lieu of his right and interest in the soil of the said tracts, and in all substrata under the same, and that the residue of the said tracts be allotted among the commoners in proportion to their respective rights;" and "that the residue of the said Naphill-common and Greenhill be allotted among the parties entitled to rights of common or pasturage thereon." The inclosure was sanctioned and directed to be proceeded with, and a valuer was appointed; and on the 31st March 1859 he made his report to the Inclosure Commissioners, and at a meeting held by the assistant-commissioner on the 30th Nov. 1859, for the purpose of hearing objections to the valuer's report, one Roger Williams, to whom lands were to be allotted according to the terms of the provisional order, applied to have a private carriage-road set out for him under the provisions of sect. 68 of 8 & 9 Vict. c. 118, over Piggott's common, being part of the land to be

C. CAS. R.]

REG. v. JOHN BAIN-COLLIER 7. KING.

[C. B.

The jury found him guilty of the misdemeanor of attempting to commit a felony.

The question for the opinion of the Court of Criminal Appeal is whether the prisoner could be convicted of a misdemeanor on this indictment, which is for a felony created by the 24 & 25 Vict. c.96, s. 57: The prisoner was on bail before the trial, and is now on bail to appear and receive sentence when called on.

allotted to Mr. Grubb, when Mr. Grubb objected thereto, | with intent to enter the shop and steal the goods, they and to the right and jurisdiction of the said Inclosure Com- might find him guilty of a misdemeanor in attempting missioners to set out the same. His objection was overruled to commit that felony. by the commissioners, on the ground that the lands to be allotted to Mr. Grubb, according to the terms of the provisional order, were lands still subject to be inclosed within the meaning of the Inclosure Act, and that there was nothing to take them out of the jurisdiction of the valuer, or to preclude him from dealing with them in the course of such inclosure in the same manner as other allotments; and being of opinion that Mr. Williams' application was reasonable and well founded, reported accordingly to the commissioners, who directed the valuer to set out such private road over Piggott's-common, and it having been accordingly staked out, Mr. Grubb caused the writ of prohibition to be issued.

Judgment for the defts., and error thereon.
Couch for the plt. in error (the plt. below).
F. M. White contra.

WIGHTMAN, J.-In this case the question is, as to the effect of the provisional order. For the plt. it is contended that it conveys to him an indefeasible right to the lands allotted to him by such order, such land to be free and clear of all charges and incumbrances, and particularly those of roads and ways. In the provisional order no mention is made as to the making of roads, so that there is nothing which excludes the commissioner or the valuer from setting out private roads. By the Inclosure Acts it is provided that the valuer is to set out ways after the issuing of the provisional order, and before the final allotment of the lands to be inclosed. Sect. 68 of the General Inclosure Act authorises the valuer to set out roads through the lands to be inclosed, and therefore the provisional order must be taken to be made subject to the right of the valuer to set out private roads; and upon this view we ground our decision that the judgment of the court below should be affirmed.

Judgment affirmed.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

Saturday, Jan. 18.

(Before ERLE, C.J., BLACKBURN, J., KEATING, J., WILDE, B. and MELLOR, J.)

REG. V. JOHN BAIN.

Indictment for felony—Breaking and entering a shop with intent-Attempt to commit a felony.

On an indictment under the 24 & 25 Vict. c. 96, s. 57,
for feloniously breaking and entering a shop with
intent to commit a felony:

Held, that a prisoner might be found guilty of mis-
demeanor in attempting to commit that felony.
Case for the opinion of the Court of Criminal
Appeal by the recorder of Manchester.

At a court of quarter sessions of the peace holden in and for the city of Manchester, in the county of Lancaster, on the 13th Dec. 1861, John Bain was tried before me on an indictment for having on the 5th Dec. feloniously broken and entered a certain shop with intent to commit felony, to wit, feloniously to steal certain moneys, goods and chattels therein.

At the trial it appeared the prisoner was disturbed before he had. completed the offence with which he was charged. He was seen on the roof of the shop he was indicted for breaking and entering, and taken coming off the roof. On examining the roof it was found that a large hole, upwards of two feet square, had been broken in it, but there was no evidence at all of his having in any way entered the building.

Upon this I told the jury that the prisoner was entitled to his acquittal on the charge of felony, but that if they were of opinion that he broke the roof

R. B. ARMSTRONG, Recorder of Manchester. The 24 & 25 Vict. c. 96, s. 57, enacts that whosoever shall break and enter any dwelling-house, church, chapel, meeting-house, or other place of Divine worship, or any building within the curtilage, school-house, shop, warehouse, or counting-house, with intent to commit any felony therein, shall be guilty of felony; and being convicted thereof shall be liable to penal servitude not exceeding seven years, and not less than three years, or to imprisonment not exceeding two years, &c.

No counsel appeared to argue on either side.
By the COURT:
Conviction affirmed.

[blocks in formation]

REGISTRATION APPEAL.
Nov. 11 and Dec. 7.
COLLIER (app.) v. KING (resp.)
Election law-County vote- -Qualification-
Dissenting minister.

The app., who was minister of a sect called Par
ticular Baptists, claimed to vote in respect of a
copyhold house and garden of which he was occu-
pier. The property in respect of which he claimed
was vested in trustees, upon trust that the trustees
"do and shall from time to time, and at all times
for ever hereafter, permit and suffer the said dwelling-
house and premises to be held, used and occupied by
the minister of the congregation, &c., as and for
his place of abode." The deed contained no direc-
tion by whom the minister was to be appointed, nor
any power for his removal; but in fact he was ap-
pointed by a "call” or invitation by letter, signed
by three deacons, asking him to become their minister.
The evidence as to the appointment being for life
consisted in his own statement that he so considered
it, and the evidence of one of the deacons who had
been a member of the congregation thirty-five years,
that the appointment was in the usual mode, and in
his opinion was for life.

The revising barrister on these facts decided that it was not proved that the appointment was for life, and expunged the name of claimant from the register:

Held, that though the revising barrister might have inferred from the facts that the appointment was for life, still it was not a necessary inference, and therefore the court would not say he was wrong in expunging the name from the register.

This was an appeal from the decision of the revising barrister, at his court for revising the list of voters for the parish of Downton, in the southern division of the county of Wilts.

CASE.

At a court held at Downton, before the barrister-atlaw, duly appointed to revise the list of voters in the parish of Downton, Frederick King objected to the name of John Thomas Collier being retained in the list of voters for the said parish.

The facts of the case are as follows :-John Thomas Collier is the minister of a Dissenting congregation called Particular Baptists, at Downton aforesaid, and

COLLIER v. KING.

C. B.] stood in the register of South Wilts as follows:"Collier, John Thomas Downton (copyhold house and garden), South-lane, himself occupier."

66

By deed, dated the 25th Sept. 1813, the property in respect of which he claims to be registered appears to be vested in trustees upon certain trusts, and among others, that the trustees, and the survivors and survivor of them, and the heirs of such survivors, or such new and other trustees as aforesaid, do and shall, from time to time, and at all times for ever hereafter, permit and suffer the said dwelling-house and premises thereto belonging to be held, used and occupied by the minister of the said congregation for the time being, as and for his place of abode and residence.

There is no direction in the deed as to the mode by which the minister should be appointed, nor any power given for his removal. It appeared that in the year 1947 the said John Thomas Collier received a letter from three deacons of the congregation, of which the following is a copy:

"From the two visits you have paid us in the capacity of a supply, from the intercourse we have had with you, and from the enjoyment and profit we❘ have experienced under your ministry, we have acquired a conviction of your adaptation and qualification to take the oversight of us in the Lord;' in accordance with which we herewith cordially and unanimously invite you to become our pastor. But in doing so we leave it entirely to your own judgment whether you will, without any further knowledge of us, at once accede to the invitation, or whether you would prefer to come amongst us for three months longer on probation before you decide, in order that you and we may enjoy the satisfaction of a more marked intimation of the Divine will.

"Aware of the solemnity of the step we are taking, and of the sacredness of the relation subsisting between a pastor and a people, we would earnestly pray that, should that relation subsist between yourself and us, it may be richly realised beneath the most expressive tokens of the Divine benediction. Most devoutly commending you to the wisdom and blessing of the Great Head of the Church,

(Signed)

"JOHN ANDREWS,
"WILLIAM EASTMAN,
"JAMES MITCHELL,

Deacons."

[C. B. If the court should be of opinion that I was wrong in this decision, the name should be restored.

J. A., Revising Barrister. Welsby for the app.-Here the claimant assertshis qualification for the franchise in respect of an equitable freehold, he being a minister of a sect called "Particular Baptists." I am unable to distinguish this case from that of Burton, app., v. Brooks, resp., 11 C. B. 41. It seems to come back to the question whether the appointment of the minister is one to an office for life. The claimant himself and one of those who appointed him say that they believed the office to be an office for life. It is found in the case that the deed contains no power of removal. The case is within the authority of Burton v. Brooks, and the court will therefore hold that the claimant had a right to the franchise.

J. D. Coleridge contra.-When looked at closely, the case of Burton v. Brooks will be found to be an authority adverse to this claim. It was a question of fact for the revising barrister to determine on the evidence before him; and he rightly rejected the claim. Besides this, the appointment to such an office must be in writing to satisfy the 3rd section of the Statute of Frauds.

Welsby in reply. The case shows that the revising barrister thought he was deciding a question of law: (Rex v. Jotham, 3 T. R.) Cur, adv. vult.

Dec. 7.-ERLE, C.J. now delivered judgment.In this case the app. claimed to be qualified by an equitable freehold estate, which was vested in the trustees for the minister of the time being of a congregation at Downton. The case sets forth a letter signed by three deacons, requesting the app. to become the minister after three months' probation; the three months' probation and call, in general terms, to become minister; and the continuance in that capacity from 1847. The further evidence in support of the duration of the appointment was the statement of himself and one of the deacons who had known the usage for thirty-five years, that they considered it to be for life. The revising barrister decided that, from these facts, he could not draw the conclusion that the appointment was for life; and we are to say whether that decision is wrong in point of law. The facts found do not necessarily prove that this general appointment operated as an appointment for life. The barrister had, by law, the duty of stating what infer

In accordance with the request contained in the said letter, the said John Thomas Collier undertook the duties of minister to the said congregation for a pro-ence he drew from the premises before him; and bationary period of three months. At the expiration of that time he received, verbally, a second call, in general terms, to become the minister of the congregation, which he accordingly did, and still remains so, and in such capacity has ever since occupied the premises in respect of which he now stands on the register, and which are of the sufficient value to qualify him to vote if otherwise entitled.

The proof of his appointment for life consisted of his own statement, that he so considered it, and the evidence of one of the deacons, who had been a member of the congregation for thirty-five years, that the appointment was made in the usual mode, and, in his opinion, was for life. It was objected that the said John Thomas Collier, under the circumstances above mentioned, is not legally appointed for life, and does not take such an interest by virtue of the said office as would qualify him to be retained on the register.

On the other side it was maintained that, from the above facts, it was shown that such appointment constitutes a freehold interest sufficient to establish the said John Thomas Collier's right to be so retained.

I was of opinion that the right of the said John Thomas Collier to be retained on the register was not established, and accordingly expunged his name.— ohn Aldridge.

although we think he might have inferred that the ap-pointment was for life, it is not a necessary inference, and we cannot say that he was wrong in declining to draw that inference. In Burton v. Brooks, 11 C. B. 46, the revising barrister did infer that the appointment was for life, and the court affirmed his decision, and Maule, J. approved of it. Still, it must be noted that there was additional evidence in that case, for the deed creating the trust expresses it to be for the life of the minister therein named; so that the existing appointment at the time of the deed was clearly for life, and it might well be presumed the subsequent appointment would be for life if no change was indicated. In the AttorneyGeneral v. Pearson, 3 Mer., Lord Eldon directs an inquiry to be made by the master to ascertain whether the general appointment of a dissenting minister there operated as an appointment for life. This direction is more fully stated at the conclusion of this judgment. In Porter v. Clarke, 3 Sym. 323, the appointment was general, and the V. C. refused to infer that it was for life, but he relied much on the fact that there was no house and no endowment for the minister, and nothing beyond voluntary contributions. Although the question referred to us is, strictly speaking, a question of fact, it probably is sent to us in order that some principle may be suggested for future guidance. We

« EelmineJätka »