than that all those mischievous effects should not be remedied 1792. against which this act was intended to guard. (a) GROSE, J.-The statute requires that the consideration for SAUNDERS against every annuity shall be set forth in the memorial, otherwise that HARDINGE the deed shall be null and void to all intents and purposes. Here no consideration is set forth for the annuity secured by the bond; and therefore the bond is void. The fourth section, referred to, which says that the grantor may apply to the Court, &c. refers to a different class of cases; those, where part of the consideration is returned, &c. (a) Buller, J. was indisposed. Rule absolute. GOODRIGHT, on the Demise of JOHN BAKER, against Friday STOCKER. Nov. 16th. A devise of a house to 4." paying said house the sum of will carry General in 15s. to B." words in a N the trial of this ejectment at the last Exeter assizes before Wilson, J. a special case was reserved for the opinion of this Court. J. Johnson, being seised in fee of the premises in ques- yearly and tion, by will, dated in February 1769, in which was this intro- out of the ductory clause," as touching all such temporal estate of lands, "goods and chattels as God hath endowed me with, I give, de"vise, and bequeath thereof as folioweth," devised to his grandson John Baker his higher dwelling-house, lying near the market troductory place in this town (Sidmouth), “paying yearly and every year out of the said higher dwelling-house the sum of 15s. unto his granddaughter A. Halstaff." The devisor died in July 1769, leaving Joseph Baker his grandson his heir at law; on which John Baker, the devisee, entered, and continued in possession till his death, which happened 18 years ago. The lessor of the plaintiff, who is the son and heir at law of the devisee John Baker, attained his age of 21 in September 1791. The value of the fee-simple of the premises in question does not exceed 61. will, as. "touching &c." all my temoral estate, though they effect in the tion of the will, are not selves suffi have some construc of them cient to extend a de vise for life The question was, Whether John Baker, the devisee, took an to a fee. (a) estate in fee, or for life only? [Willes 141. B.& P.562. 2 lb. 252. 5 East 87. Gibbs was to have argued the former: but Burrough (for the defendant) admitted that the latter proposi- IN.R.335.] tion could not be supported. Lord KENYON, Ch. J.-Though the general introductory words used in this will would have some effect in the construction of the subsequent devises, as was said by Lord (a) Fide post. Andrew v. Southouse, 292.; Denn d. Moor v. Mellor, post. 558, and 6 vol. 175.; Doe d. Spearing v. Buckner, post. 6 vol. 610.; and Doc d. Small v. Allen, post. 8 vol. 147. Talbot 1792. GOOD RIGHT Talbot (a) in a case before him, they would not of themselves(b). have carried the fee. But it has been very properly admitted that the words "paying yearly and every year, &c. " are suffiagainst STOCKER. cient for that purpose. That annuity was intended to continue during the grand-daughter's life (though it is not so expressly mentioned); and therefore, of necessity, J. Baker, the devisee, must take an estate in fee. And his Lordship observed that all the doctrine on this subject was to be found in Baddeley v. Leppingwell, 3 Burr. 1533. and Frogmorton v. Holyday, 3 Burr. 1618. (c). Saturday, an action against the damages on the 1 G. st. 2. c. 5. for Postea to the Plaintiff (d). (a) Vide Ibbetson v. Beckwith, Cas. Temp. Talb. 160. See also Maudy v. Maudy, Cas. Temp. Lord Hardw. 143. 2 Str. 1021. S. C. (b) Denn v. Gaskin, Cowp. 660. Wright v. Russell, cited in Corp. 661. and Right v. Sidebothom, Dougl. 759. 3d edit. (c) See also Doe d. Palmer v. Richards, ante, 3 vol. 356. (d) Mr. J.,Buller was also prevented attending this day by indisposition. TH PRITCHIT against WALDRON and Another. HIS was an action upon the statute 1 Geo. st. 2. c. 5. against the two defendants, as inhabitants of the hundred hundred for of Halfshire in the county of Worcester, to recover damages on account of the riotous demolition of a house of which the plaintiff, as it appeared at the trial, was trustee under a satisfied mortgage term. The jury found a verdict for the plaintiff, but that there were not twelve persons assembled at the time of the riot. the riotous demolition of a house, it is not necessary to prove that twelve riot Russell on a former day moved to enter a verdict for the deers were as fendant, by consent, on two points reserved at the trial. 1st, Whether the plaintiff, as a bare trustee, could maintain any such action upon the statute? 2dly, Whether the action lay at all against the hundred, inasmuch as twelve persons were not assembled at the time of the riot. sembled at the time. Such an action is maintainble by a trustee in whom the Jegal estate is vested for existing purposes, and (as it seems) even by a bare satisfied Upon the calling on of the cause again this day The Court said, there was no difficulty in the second point, as it had been solemnly determined in the cases of the rioters in 1780, who were tried at St. Margaret's Hill, that it was not trustee of a necessary that twelve persons should be assembled to constitute a capital crime on the 4th clause of the statute for riotously demolishing a house; the words of which clause were pursued in this respect by the clause giving the remedy against the hundred. That it was to be remarked that in the preceding sections of the act the number twelve was particularly mentioned as descrip term. 1792. PRITCHIT ive of the offence thereby created; but it was omitted in the 4th clause, which made it felony riotously to demolish any house, &c.; and also in the one in question, giving the remedy against against the hundred; which latter too, being a remedial clause, made WALDRON. the consideration of the numbers assembled less important. Bower, Leycester, and King, therefore, in shewing cause, confined themselves to the first point, contending that in a court of law the most proper person to bring an action for any injury to property was he who had the legal title to it; that at least it never could be an objection that such a person sued. That the statute which is remedial, ought not to be so construed as to entangle the parties grieved in questions of this sort. For that whether the action were brought by a trustee, or by cestuy que trust, or by the tenant in possession, the value in damages could only be once recovered from the hundred; and if recovered by this plaintiff must be in trust for those beneficially interested. They also stated that since the trial a deed had been discovered (now verified by affidavit,) by which it appeared that the plaintiff was not only the trustee of the satisfied mortgage term, but also a trustee for other persons and for different existing purposes; and therefore it was absolutely necessary that he should maintain the action, unless the Court should hold that each of the persons interested must be named. Lord KENYON, Ch. J.-If there be such a deed, supposing even that this cause should go down to trial again on the fact as it stood before, to which I am by no means prepared to accede, yet still it would at all events be fruitless. At present, however, independently of that deed, though I am still open to conviction on what may be urged by the other side, I think that the action is maintainable. The plaintiff is a trustee of a satisfied mortgage term, which of course attends the inheritance; he has the legal estate in this property; and however it may have been a question in some cases whether the persons beneficially interested might maintain actions without having the legal estate in them, yet it has never been doubted but that the cesty que trust of a mortgage term attendant on the inheritance had a right to use the name of his trustee in all suits respecting that property. And this is the most beneficial form for the defendants themselves; since if the trustee cannot sue, each person interested must pursue his remedy against them for his own particular injury. The 1792. PRITCHIT against WALDRON. The counsel on the other side yielding to the suggestion of the Court, it was agreed that the present verdict should stand, and that no other action should be brought. Lord KENYON added, that such was the proper and he believed the legal end of the question. Rule discharged (a). (a) Vide Reid v. Clarke, post. 7 vol. 496. Tuesday, Nov. 20th. Where an act confers certain privileges on may be sued for things A BAZING against SKELTON. SSAULT and false imprisonment against the defendant who was a turnpike-man, keeping a gate within the county of officers who Surry. The venue was laid in Kent; and on the trial it appeared that the assault was committed by the turnpike-man in Surry, on account of the plaintiff's attempting to pass through the gate in a chaise which the defendant thought was a hired one, and for sequent act which he insisted upon the duty imposed by the 25 Geo. 3. c. 51. imposes new obliga- upon post horses; but in fact the chaise was not hired. done in pursuance of that act, and a sub tions on the tute do not attach on spect of under the latter. Therefore toll-gate the 25 G. 3. old officers, By the general highway act 13 Geo. 3. c. 78. s. 81. it is enacted the privi "that if any action be commenced against any person for any leges of the former sta-"thing done or acted in pursuance of this act, such action shall "be commenced or prosecuted within three calendar months af them in re-ter the fact committed, and not afterwards, and such action shall things done "be brought within the county where the fact was committed " and not elsewhere," &c. This act extends (amongst other persons) to gate-keepers. Then by the 25 Geo. 3. c. 51. certain dukeepers sued for acts ties on post-horses are directed to be levied, for which the gatedone under keepers are authorized by the 16th section to demand a ticket, c. 51. need and not to suffer any horse to pass without it. And by the 67th in the coun- clause it is enacted, "that if any person shall be sued for any thing "done in pursuance of the act, &c. he may plead the general committed, "issue, and give the special matter in evidence, and is also enas they must be under the "titled to treble costs in case of a verdict for him or non-suit." At the trial before Gould, J. it was objected that the action ought to have been brought in the county of Surry where the fact was committed, for that the two statutes above mentioned were to be considered in this respect as passed in pari materiáâ, and that the provisions of the former respecting the privileges of such as acted under that statute, amongst others of gate-keepers, were to be incorporated in the latter, according to the principle not be sued ty where the fact was 13 G. 3. c. 78. s. 81. BAZING against laid down in Duck v. Addington (a). According to this, they 1792. would be entitled to be sued in the county where the fact happened for things done in the execution of their duty as such gatekeepers; and therefore the action ought to have been SKELTON. brought in Surrey. A verdict, however, was taken for the plaintiff, with liberty to move to enter a non-suit in case the Court should think the objection well founded. A rule having been accordingly obtained for that purpose, Garrow and Marryat now supported the objection, and again urged the same argument. They also compared this to the case of a justice of peace, who is entitled to notice by the 24 Geo. 2. c. 44. previous to any action brought against him for any act done in the execution of his office; which privilege has been held to extend to subsequent acts imposing new duties upon him. So, here the gatekeeper by the 13 Geo. 3. has several privileges conferred in respect of the duties imposed upon him in that capacity. By the same rule therefore those privileges ought to extend to the subsequent act, which throws additional burthens upon him in respect of the same office. The protection of the former act would not perhaps extend to the new officers, such as the collectors of the post-horse duty, &c. created by the last act; but the toll-gatekeeper is there spoken of as an officer known to the law before. Shepherd who opposed the rule, after observing that the two acts referred to were not passed in pari materiâ, the one relating to the repair of highways, and the other to the post-horse duty; and that the privileges in the first act were merely confined to things done in pursuance of that act; was stopped by the Court. Lord KENYON, Ch. J.-I think that the direction below was perfectly right. The system of laws, respecting the repairs of roads, has imposed certain duties on the gatekeepers; and in order to protect them in the execution of their duty, has given them certain privileges; that they may plead the general issue to actions brought against them for any thing done in pursuance of that act; and that such actions shall be brought in the county where the fact was committed, in order that they may not be removed to a distant part of the country to defend themselves. But the statute, on which this action is brought, has nothing to do with the repairs of highways, but was passed for a different purpose, to raise a public tax. This act has also imposed duties on gatekeepers, and introduced certain regula(a) Ante, 4 vol. 447. C VOL. V. tions |