1800. Friday, Νου. 14- making fe veral pecu niary be DOE on the Demife of CHILLCOTT against WHITE. will, bris EJECTMENT on the feveral demifes of John Chillcott, the first of the first of January 1796, and the fecond of the first of January 1800. for certain freehold lands and premifes in Elworthy Stogumber and Brompton Ralph in the county of Somerset, called Burge's Cottage, Burge's Eftate, one moiety of Truckwell Eftate, and Middle Whetcombe in the poffeffion of Eleanor White. The caufe was tried at the fummer affizes at Wells 1800 before Mr. Baron Thomson, tage and her when a verdict was found for the plaintiff, fubject to the opinion of living in it if the Court on the following cafe; quests, de viled to A. W. the in come of a certain cot proper; and tain &c. and alfo his * to give 66 proper of her fifters The thought Emanuel Chillcott being feifed in fee of the premifes in queftion E. W. the and of the other moiety of Truckwell Estate, and being poffeffed of half of a cer- perfonalty, on the 16th of March 1786 made his will of that date, eftate; duly executed and attefled to pafs real eftates, in the following reft and re- 34] Words; as touching fuch worldly eftate and effects wherewith fidue of his it hath pleafed God to blefs me I give and difpofe of the fame in goods, & manner and form following; (after giving feveral pecuniary legacies Lands, &c. he to his relations,) "Alfo I give unto Ann White my fifter in law 20/. gave to his and the incomes of Burge's Cottage, and her living in it if fhe think wife for life, with power' proper, during her natural life. Alfo I give unto Eleanor White 100%. and half of Truckwell Eflate during her natural life. Also I "what the give unto William Burge my fervant man 5. All the reft and re"thought fidue of my goods chattels rights credits perfonal and teftamenher faid tary eftate, and alfo my lands tenements and hereditaments I give effects to devife and bequeath unto Elizabeth Chillcott my dearly beloved wife the faid A. during her natural life, whom I make my fole executrix. And I do &E W. tor allow her the faid Elizabeth Chillcott to give what the thinks proper their lives of her faid effects to her lifters Elinor White and Ann White during and after the their natural lives. And after the above lives being expired, viz. wife and her Eliz. Chillcott, Elinor White and Ann White, all the lands rights two fifters he profits and hereditaments of Truckwell Estate to come to John Chill&c. to cott my kinfman living in London (a) or his male heir; if any free his heir at land, not to be fold or mortgaged on any account whatfoever, but law. Held to remain in the Chillcott family for land of inheritance, with two dow had cottages garden and orchard in the parish of Brompton Ralph adpower to de- joining to the aforefaid Truckwell Eflate called by the name of Middle vife to her Whetcombe Free Land. And if no male heir lawfully begotten by real as well the faid John Chillcott then the above lands to fall to the first male as perfonal heir of the branch of my uncle Richard Chillcott's family, who lived eflate before at Henerick Farm; yielding and paying to fuch of the daughters of the bequeathed to her by her [55] aforefaid Richard Chillcott which shall be then living the fum of husband; 100/. each, at the time of taking poffeffion of the aforefaid eftates." and A. W. The teftator died on the 24th of May 1787 fo feifed of his feveral eftates. Elizabeth Chillcott his widow, and her fifters, Eleanor the widow, that defendant, and Ann White furviving him. The leffor of the plaintiff the latter the faid John Chillcott at the time of the teftator's death was and is death of his gave all his that the wi fifters the having died before the might among the rest bequeath the cottage, in which A. W. had a life intereft, to her other filter E. W. (a) To whom the teftator had before given a pecuniary legacy. now WHITE. now his heir at law. On the death of the teftator Ann White entered 1800. into Burge's Cottage, Eleanor White into the moiety of Truckwell Eftate, fo devifed to them refpe&ively, and Elizabeth Chillcott (who DOE proved the will and took poffeffion of all the teftator's perfonalty) again entered into the refidue of the real estates. Ann White died on the 9th of April 1791, in the lifetime of Elizabeth Chillcott, who thereupon took poffeffion of Burge's Cottage; and on the 23d of April 1792 made her will duly executed to pass real estates; wherein reciting the will of her husband and the power thereby given to her "to give what the thought proper of the faid effects (of her husband) to her fifters Eleanor White and Ann White during their natural lives," and reciting alfo the death of Ann White, the thereby, in purfuance of the power reserved and of all other powers wherewith the was either in law or equity invested, gave and devifed unto her fifter Eleanor White for her life "all fuch goods chattels rights credits perfonal and teftamentary eftate lands tenements and hereditaments as the was empowered under or by virtue of the faid recited will of her said deceased husband to give and devife." She alfo devifed unto her faid fifter E. W. "all the reft refidue and remainder of her goods and chattels rights and credits real and personal eftate and effects whatfoever and wherefoever, of what nature or quality foever, fubject to and charged with the payment of her debts and funeral expences." And appointed her faid fifter E. W. fole [36] executrix, and refiduary devifee. On the 25th of December 1795 Elizabeth Chillcott died, on whofe death the defendant Eleanor White proved the will, took poffeffion of the whole of the personalty, as well that which was Emanuel Chillcott's the teftator's, as that which was of Elizabeth's own acquiring, and entered into all the real estate which was in Elizabeth Chillcott's poffeffion, and still holds the fame. The question was whether the leffor of the plaintiff was entitled to recover the whole or any part of the above premises. If the Court were of opinion he was entitled to the whole, the verdict to stand for the whole; if to part only, the verdict to ftand for fuch part; if to none a nonfuit to be entered. Dampier, for the plaintiff, contended that Elizabeth Chillcott had no power under the will of Emanuel Chillcott to dispose of any part of the real property. The teftator only allowed his widow to give "what the thought proper of her faid effects" to her fifters for their lives; and the words effects will not carry land. It is ufually applied only to perfonalty, and the teftator has fo applied it in his will; for at the beginning of his will he used the word eftate with reference to his real, and the word effects with reference to his perfonal property. It may be faid that Emanuel Chillcott having before given both real and perfonal property to his widow, the words "faid effects" muft apply to both; but that is not neceffarily fo; and if the meaning of the will be only doubtful the Court will conftrue it in favour of the heir at law. It is true the lands, &c. are devised over to the heir at law after the decease of the two fifters as well as his widow; but he had before given to each of the fifters an intereft in part of the landed eftate, which is fufficient to fatisfy those words. At any rate the leffor of the plaintiff is entitled to re- [37] C 2 cover 1800. cover Burge's Gottage, which the teftator had given to Ann White for her life, and which therefore cannot be faid to be any part of Dox "her" (the widow's) "faid effects" not having been before beagainst WHITE. queathed to her; and of fuch part only as had been before devifed to herself was the widow allowed to make any further difpofition. Tripp contrà was stopped by the Court. [ 38 ] Monday, Nov. 17th. It is no objection to relators ap plying for a information against the defendant of an alder. man (his election to Lord KENYON C. J. It is very plain what the teftator meant. After giving a few legacies and bequests he devises all the residue of his property both real and perfonal of every defcription to his widow for her life, and then allows her to give what the thinks proper of her faid effects to her fifters for their lives. This description must apply to the property which he had been before dealing out, amongst which Burge's Cottage is mentioned by name; the income of which he had given to Ann White, and her living in it if the thought proper (a); over all of which not before difpofed of he meant to give his widow a control. And this is confirmed by the terms of the devise to the heir at law, who is not to take any thing till after the death of all the fifters. Per Curiam, Judgment of nonfuit to be entered (b). (4) A devife of the free ufe of lands will pass the intereft in them. Cook v. Gerrard. 1 Saund. 86. (6) So the word legacy" in its ordinary fignifica ion is applied to money; but it may fignify a devife of land Per Lord Mansfield in Brady v. Cubitt, Dougl. 40 S P. Per Lord Macclesfield in Beckley v. Newland, 2 P. W 182. S. P. Per Lord Camden in WilliamJon v. Hurft and others in Chan. M. 7 Geo. 3. MS S. P. in Hope v. Taylor, Į Lurr. 268. TH The KING against CLARKE. 'HE defendant was called upon by a rule to fhew cause why an information in nature of a quo warranto fhould not be exhibited againft him, to fhew by what authorty he claimed to be an alwarranto derman of the borough of Eaft Retford in the county of Nottingham. The borough confifts of two bailiffs, twelve other aldermen, and an indefinite number of burgeffes. And thus far the affidavits on for exercif. both fides agreed as to the right of election of an alderman, that the ing the office bailiffs aldermen and burgetles for the time being or the greater part of them should, upon a vacancy, elect one of two burgeffes who fhould be fubmitted to their choice by a certain felect body in the had opposed) corporation; but by whom that nomination was in the first instance that they af- to be made was a fubject in controverfy, and not material to be terwards here confidered. In general it appeared that the election of the made no defendant was made under circumftances of great doubt and con•ppofition to his election fufion, after the senior bailiff and many of the corporators had left to the prin- the Common Hall, having juft before proceeded to the election of cipal office of one Chapple to fill the vacant office of alderman, which election however was afterwards fet afide upon proceedings had against him for that purpose. which they magistracy, (to which the other was a necef fary quali But the principal ground on which the prefent rule was oppofed fica on); or was that of the acquiefcence of the feven relators, upon whofe affithat they af terwards attended at and concurred in corporate meetings whereat he prefided, or where he attended in his official charact r. Such application being made within the time limited by law, viz. in 4 years after the defendant's election as an alderman. 1800. againft CLARKE *[ 39 ] davits the rule was obtained, who were burgeffes of the borough; as to which the circumstances appeared to be thefe: The election of the defendant to the office in question took place in July 1795, The KING and it was not pretended that any of the relators concurred in the act of his election, but on the contrary left the Hall after the election of Chapple in which they had taken a part. The affidavits against the rule then ftated that the defendant, having been at first fworn in before the junior bailiff only, had an information in nature of a quo warranto filed against him, to which he entered a disclaimer on that account; but afterwards in Trinity Term 1796 obtained a writ of Mandamus requiring the two bailiffs to permit him to be fworn into office before them, which was accordingly done towards the latter end of 1796; fincé which he had always exercised his faid office. That on the 29th September 1798 he had been elected into the office of fenior bailiff (which can only be holden by an alderman of the borough) by a majority of the bailiffs and aldermen, in whom the right of election is vefted, and had served the office for one year. That the relators were at the feveral times of his nomination election and fwearing in as aforefaid refpectively burgeffes of and refiding within the town, and well acquainted as was believed with all the circumstances of the defendant's nomination and election, and of his obtaining the faid writ of Mandamus, and of the gath fo administered to him before the two bailiffs; and of his being afterwards elected into and serving the office of fenior bailiff; those circumstances being publickly known and difcourfed of in the town and neighbourhood; and have acquiefced in all thofe tranfactions as aforefaid until the prefent application: and that the said relators have also attended corporate meetings and elections of junior bailiffs and aldermen, at which the defendant was present both as alderman and senior bailiff, and that they had voted on such occafions; and that they never objected to the defendant's giving his vote as [40] alderman on fuch occafions. Gibbs and Yates for the defendant, having firft argued upon the merits for the regularity of the election, then contended that, even admitting it to have been irregular, yet after an acquiefcence for fo long time on the part of the whole corporation, including the present relators, they were now eftopped from objecting to it. No oppofition was made to the Mandamus to fwear in the defendant in the first instance, nor to his fubfequent election to the office of fenior bailiff, which can only be holden by an alderman, and which was therefore a recognition of his title as alderman. And fince that appointment feveral elections of aldermen and others have been made without any question, all which derivative titles will be deftroyed if the defendant be oufted. As before the late act of the 32 Ges. 3. c. 58. the Court often refufed applications, from mere Japfe of time, within twenty years, which was the period of limitation at that time; fo neither was that ftatute intended to limit the difcretion of the Court in refufing applications of this fort within fix years, the limitation thereby fixed. In the Winchelsea cafe (a) when (e) 4 Burr. 1962, and the MS. note of Mr. Justice Yates, from whence the quotation was made. 1800. the Court, by analogy to the ftatute of limitations in refpect of ejectments, laid down the rule, "that they would not give leave The KING to a common relator to commence a profecution in the nature of a against quo warranto after an acquiefcence of twenty years, they observed CLARKE. at the fame time that though the acquiefcence might be short of that period, they would not therefore grant an information, unless it [41] appeared to be a proper cafe." The fame rule was alfo fully explained in the case of The King v. Wardroper, M. 7 G. 3. (a) one of the Winchelsea cafes. The Court there were unanimously of opinion that the rule ought to be discharged with cofts. "They admitted that no length of time will establish a right against the crown; and that if his majefty's Attorney General were to file an information on behalf of the crown, the defendant's long enjoyment would be no bar, without fhewing a good title. But when the information is only by a common relator, who cannot proceed without the leave of the Court, a long acquiefcence in the defendant's right may operate upon the difcretion of the Court, and induce them to refufe their own leave for fo ftale and ill-timed a profecution. If the Court were of courfe to grant every information that is asked, the ftat. of Queen Ann which requires the Court's leave before a relator can commence a profecution would be virtually repealed, and the Court deprived of the difcretion repofed in them. The view of that ftatute was on the one hand to facilitat❤ and speed the removal of ufurping officers and pretended corporators; and on the other hand, to reftrain all improper and vexatious profecutions, by putting it in the power of the Court to refuse their leave. The ftat. 4 & 5 Wil. and Mar. c. 18. has reposed in the Court the fame difcretionary power over criminal informations. The title of that act is an act to prevent malicious informations ; and with that view it directs that the clerk of the crown fhall not receive or file any informations without the exprefs order of the Court. And though the words of that statute relate only to informations for trefpaffes, batteries, and other mifdemeanors; yet it [42] was holden in the cafe of the King and Morgan (b) that under the word misdemeanors it extends to informations in the nature of a quo warranto: for an ufurpation of an office or franchise is a misdemeanor, and liable to a fine. It is evident therefore that the Court have a right to use their own difcretion, and to grant or refuse an application of this kind according as they fhall think it expedient or not. The next confideration is, Whether upon the case now difclofed it would be proper to permit the profecution applied for? It has been said that this cafe does not reach the limitation of time which the Court have fet against thefe applications; for it is not yet 20 years fince the defendant was elected. In drawing that line the Court only meant it as a boundary they would never exceed; that is, they would in no cafe permit any common relator to disturb a corporator after a quiet enjoyment for twenty years. But it is not from thence to be inferred that they would grant informations wherever the enjoyment has been lefs than 20 years. They will fill examine into the propriety of the prosecution under (a) This was also read from Mr. Justice rate's MS. (b) Carth. 503. all |