1841.

DOE d.

HAMILTON

V.

CLIFT.

for granted that, in this description of customary estates, the estate of the tenant ceased at the death of the lord or the tenant, though the heir had a tenant right, which entitled him to be admitted. He might, indeed, enter and take the profits, and perhaps maintain trespass against a person who came upon the lands; but he would not be entitled to do the other things above enumerated, which might be done by the heir of the copyholder in fee, unless there was a custom to authorise them to be done.

It appears by the case that, by the custom of the manor, these estates are devisable by will, but that does not seem to make any difference; that is only the power of substituting another person, whom the lord is to admit, instead of admitting the heir.

And, as we think that, in tenant-right estates of the description which this is, the heir cannot be considered as being a tenant of the manor till admitted, he cannot be said to have died seised, and, therefore, the custom for the eldest female to have the whole estate does not attach, and therefore the plaintiff is entitled to recover the moiety claimed in the ejectment.

After the delivery of this judgment, the case was amended by rule of Court as follows:-After the words in the case (p. 580), "the name of James Satterthwaite was entered on the court rolls as tenant, as being the only son, and heir at law of the late James Clarke Satterthwaite, deceased, of the Lupton High, to hold the same during the joint lives of the lord and the tenant," the following words were introduced: "according to the custom of the said manor, as settled by indenture and decree, of which there is an entry on the court rolls of the said manor, by which it appears that the copyhold tenements of the said manor are held by the tenants thereof to them and their heirs, by custom of tenaut-right of the lord of the said manor."

The case was argued a second time in Easter term, 1840 (a).

(a) April 28, before Lord Denman C. J., Littledale, Patteson and Coleridge Js.

Cresswell for the plaintiff.

Wightman contrà, in addition to the authorities which were cited in the former argument, cited Roe d. Beebee v. Parker (a), as to the evidence of the custom; and on the other point, as to the necessity of admittance, he cited 1 Scriven on Cop. 358 (b), Lord Mansfield C. J. in Knight v. Bate (c), Kitchin's Jurisdictions, 162, Com. Dig. Copyhold, (D. 1), Doe d. Milner v. Brightwen (d).

Cresswell in reply cited, on the last point, 1 Scriven on Copyholds, 362 (b), and Tiping v. Bunning (e).

Cur. adv. vult.

Lord DENMAN C. J. in Trinity term, 1840, (June 24,) delivered the judgment of the Court as follows:-The judgment pronounced by the Court in this case having been founded on the want of any allegation in the special case, that the tenant-right estates of the manor of Lupton were estates of inheritance, the case has been amended in that respect, and a second argument has been heard. The allegation introduced by way of amendment is not very satisfactory; but the Court feel the force of an observation made by the counsel for the defendant (who introduced the amendment) viz. that, as the lessor of the plaintiff claims as heir, and must recover by the strength of his own title, the defendant must be entitled to the verdict, unless they are estates of inheritance, as asserted by the defendant.

It must, therefore, be taken that they are estates of inheritance; and the questions in the cause become as they were originally understood to be. First, whether the al

(a) 5 T. R. 26. (b) 3d ed.

(c) 2 Cowp. 741.

(d) 10 East, 583.

(e) Moore, 465; S. C. as Gyphen v. Bunney, Cro. Eliz. 504.

1841.

DOE

d. HAMILTON

V.

CLIFT.

1841.

DOE d. HAMILTON

v.

CLIFT.

leged custom was proved; and, secondly, whether James Satterthwaite died seised, so that the custom, if proved, could operate. On the second question we are of opinion, for the reasons given in the former judgment, that James Satterthwaite did die seised, so that the custom might operate; though that conclusion was not then drawn by the Court, it being unnecessary in the view then taken of the case. With regard to the first question, we are of opinion that the court rolls sufficiently proved one part of the custom, viz. that, in case a tenant died seised, leaving no children nor brother, but several sisters, the eldest sister should take, in exclusion of the younger sisters; and this was proved without the aid of the book and verdict papers, to which objection was made.

The proof of the other part of the custom, viz. that, if such elder sister died in the lifetime of the tenant, leaving a son, such son should, on the death of the tenant, take, in exclusion of the younger sisters, at first appeared to be more doubtful. But, on consideration, we think that this also sufficiently appears from the rolls, without the aid of the book or verdict papers, or the parol evidence of reputation. Looking at the rolls alone, in respect to the estate of the Ashton family, it appears that, on the death of Hugh Ashton, his son James was admitted to two cattlegates, as son and heir of his father; but the fine as to one was respited till the death of Eleanor, the widow of Hugh. It appears also that James died in the lifetime of Eleanor, leaving no child or brother, but several sisters, the elder of whom (Mrs. Burrow) was admitted as his heir to that cattlegate in his possession, and in respect of which he had paid the fine. Mrs. Burrow also died in the lifetime of Eleanor, leaving a son. And upon the death of Eleanor that son was admitted to the other cattlegate held by Eleanor, and to which his uncle James had been admitted, but the fine had been respited, although his mother (Mrs. Burrow) was never admitted to nor seised of it.

HILARY TERM, IV VICT.

Without, therefore, entering into the question as to the admissibility of the other evidence, and not meaning to express any opinion against it, we think that the custom was well established, and that the lessor of the plaintiff, who claims as heir at commou law, is not entitled.

And the result is, that a nonsuit must be entered.

1841.

DOE

d. HAMILTON

บ.

CLIFT.

Nonsuit entered.

The QUEEN v. The Guardians of the Poor of the

BRAINTREE UNION.

Saturday, January 16th. It is not essen

Commission

MANDAMUS. The writ recited an order of the Poor tial to the valiLaw Commissioners to the guardians of the poor of the dity of any but general Braintree Union, in the county of Essex, to appoint a chap- orders of the lain of the union, and to report to the commissioners his Poor Law appointment and amount of salary. The time for the obe- ers to the guardians of an dience to the order was enlarged by several subsequent union, that orders. In the return it was stated that the said order had they should be submitted to not been sent to one of the secretaries of state, although the Secretary at the several times, simultaneously with the said order, an of State; 4 & 5 Will. 4, c.76, order in the same terms and to the same effect had been addressed to another union, viz. the Royston Union. And further, that there was a prior order of the commissioners still unrevoked, providing for the performance of the offices of religion within the workhouse, independently of any appointment of a chaplain, prescribing only that in case the guardians should deem it necessary to appoint one, he should be licensed and approved by the diocesan, and that,

if the appointment should be deemed necessary, he should

s. 16.

If an order is directed to one union only, it is not a

general order, though an orterms is simultaneously another union.

der in the same

directed to

Under the stat. 4 & 5 Will. 4, c. 76,

s. 15, the commissioners have power to rescind or alter any order made by them, and an order, inconsistent to some extent with a former one, will have the effect of altering that former order, and will be valid itself.

Under the 46th section, the commissioners have power to order the guardians to appoint a chaplain. He is an officer under that section, "for carrying the provisions of the act into execution," the purview of the act shewing that it was intended by the legislature that spiritual functions should be performed in the workhouses, for the benefit of the paupers.

1841.

The QUEEN

v.

The Guardians

of the

BRAINTREE

UNION.

perform certain specified duties, such as reading prayers and preaching, administering the sacrament, examining the children and visiting the sick paupers. The return then stated that the guardians, in the exercise of their judgment and discretion, did not deem it necessary to appoint a chaplain. It stated, as reasons for their judgment, that provision had been made for the performance of religious offices by the schoolmaster of the union, for the attendance of the paupers at the parish church and dissenting places of worship in the union; and further, that clergymen of the establishment and dissenting ministers within the union had been invited to perform spiritual functions in the workhouse, for the benefit of the poor, which invitation had been declined by the clergy, and accepted by the dissenting ministers, and that the majority of the paupers were dissenters, &c.

The validity of the return was now contested on a concilium, by Sir J. Campbell A. G. for the crown, and Kelly for the defendants.

It was conceded in the course of the argument that the first objection could not be supported, inasmuch as the order in question was addressed separately to one union, and therefore was not a "general rule," which, by the stat. 4 & 5 Will. 4, c. 76, s. 42, was defined to be a rule which at the time of issuing the same should be directed to and affect more than one union, and by the interpretation clause, section 109, to be "any rule relating to the management of the poor, in the execution of this act, which at the time of issuing the same shall be addressed by the commissioners to more than one union, or more than one parish or place not forming a union, or not to be formed into a union or added to one, by virtue of such rule."

With regard to the objection that the commissioners had previously issued an order investing the guardians with a discretion whether to appoint a chaplain or not, section 15 was cited, which authorises the commissioners to alter rules.