1824. The KING v. The COUNTY CLERK of MIDDLESEX. The COURT, after hearing the facts and circumstances disclosed on affidavit on both sides, were clearly of opinion that there was no pretence for granting an information on the ground of misconduct on the part of the County Clerk in his office; and with respect to the alleged exaction of excessive fees, they observed that the determination of Lord Ellenborough, C. J. and Gibbs, C. J. as to the practice of taking fees, was conclusive upon the subject, and afforded a complete answer to the complaints now alleged, inasmuch as the fees demanded were in this instance similar in amount to those which had received the sanction of those learned Judges. The Rule was therefore discharged with costs. French was for the prosecution, and Scarlett and Brodrick for the defendant. Saturday, May 15. Where a wi dow was enti tled to dower [which was unassigned] upon her husband's estate which had been mortgaged by him for a thousand years, and after receiving her dower The KING . The INHABITANTS of NORTHWEALD BASSETT. BY Richard Reynolds, the husband of the pauper Melicent Reynolds, died in May, 1822, seised of a freehold estate liable to dower in Northweald Bassett. Dower was not upon one half-barred, but it has not been assigned, nor have any steps year's rent been taken for that purpose. The heir at law has been gagee in pos- from the time of his birth an idiot, and at Richard Reysession, she from the mort became chargeable to the parish, in which the property was situated before she had resided forty days: Held, that as the dower had not been assigned, she had not such an interest in the parish as to render her irremoveable from what could be called her own. nolds's death was about twenty-one years of age. This es- The "The 7th December, 1822. Received of the heir-atlaw of my late husband Richard Reynolds, deceased, the sum of three pounds by the payment of Richard Houchin the tenant, being my third share (as his widow) of the half-year's rent of the freehold part of his estate on Thornwood Common in Northweald Bassett, due Michaelmas last." 1824. The KING v. The INHABITANTS of NORTHWEALD BASSETT. Richard Reynolds lived in Magdalen Laver. After his death, his widow, the pauper, resided in that parish for some months, and then hired and lived in a cottage in Northweald Bassett which was not on the husband's estate. Before a residence of forty days had been completed in that parish she became chargeable, and was removed by an order of Justices. The Sessions were of opinion that she was irremoveable and quashed the order. The question for the opinion of the Court is, whether the pauper was removeable from Northweald Bassett? 1824. The KING v. The INHABITANTS of NORTHWEALD Brodrick and H. I. Stephen in support of the order of Sessions. The pauper's right to dower, although unassigned, gave her such an interest in land in the parish of Northweald Bassett, as rendered her irremoveable, notwithstanding she had not completed her residence for forty days at the time she became chargeable. According to Lord Ellenborough's language in Rex v. Horsley (a), "she had at least so much colour of right to reside in the parish, without being removed, as to exempt her residence from being considered as a vagrant intrusion into a parish in which the party has nothing of her own within the purview and scope of the poor laws." It is not necessary to contend, that if the pauper had resided forty days she would have gained a settlement in Northweald Bassett; it is sufficient to shew that she had at all events such an interest in the parish as took away the power of the Justices to remove her under the stat. 13 and 14 Car. 2. c. 12. She was clearly not of that description of vagrant intruders against whom that statute was directed. The case of Rex v. Horsley, already cited, is a strong authority in support of this argument. In that case it was decided, after solemn deliberation, that a sole next of kin has such an equitable interest in a leasehold tenement of the intestate, that she gains a settlement by residing forty days in the same parish after the intestate's death, before administration granted to her; and it matters not that the widow of the intestate survived him, if she died afterwards without having taken out administration, leaving the other, sole next of kin to the intestate. There is no doubt in the present case that the pauper is entitled to dower, and though it may not have been formally assigned, yet that circumstance will make no difference as it respects the present argument. Here there has been a bonâ fide payment of £3 to her, and she has had the actual enjoyment of it, and consequently had such an interest as entitled her to remain in the parish. This case is perfectly distinguishable from (a) 3 East, 405. 1824. The KING v. The INHABITANTS NORTHWEALD Rer v. Berkswell (a), where the pauper had no right whatever to reside, being merely an intruder in point of law, and consequently could gain no settlement by a residence of forty days. It is unnecessary to cite cases to show that the party need not reside upon the property in respect of of which the interest arises; so long as the residence is in BASSETT. the same parish. Rex v. Sowton (b), Rex v. St. Nyotts (c), are authorities to that effect. The case which will be relied upon on the other side is Rex v. Painswick (d), in which it was decided, that although a mere right of dower without an assignment will gain a widow a settlement by a residence of forty days, yet it is not that sort of interest which will communicate itself to a second husband, and confer a settlement upon him and the children of the second marriage, because a tenant in dower has no right to enter till dower is assigned. But the main reason for the decision of the court in that case was, that the mere right of dower was not like the case of a next of kin, “who cannot acquire a settlement before administration granted." Now the Court will observe what the state of the law was when that decision took place. At that time no case had decided that a sole next of kin was irremoveable before administration granted; but since then Rex v. Horsley has expressly determined the affirmative of that proposition. As the whole foundation then of Rex v. Painswick was the supposition already alluded to, it follows that if a sole next of kin is irremoveable, so is a dowress whose dower is unassigned. [BAYLEY, J.-Suppose the pauper in this instance could gain a settlement by a residence of forty days, if the parish officers had allowed her to reside so long, had they not a right to remove her, if chargeable in the mean time?] Certainly not, upon the principle that she was not removeable from her own. Rex v. Horsley, it is submitted, makes out that proposition, and shews that Rex v. Painswick is not to be considered as an autho (a) Ante, vol. iii. 9. (c) 1 Burr. S. C. 132. 1824. The KING 0. The INHABITANTS of NORTHWEALD BASSETT rity governing the present question. The reason why a tenant in dower has no right to enter until dower is assigned, is founded upon public convenience, which will not allow a widow to carve for herself; and in all the cases upon this subject, it is said, that without assignment she would be a trespasser if she entered. Bac. Ab. tit. Dower, [D]. Still, however, her right to dower may be perfect without assignment, which is a mere form which the law has prescribed to consummate her title. In the Duke of Hamilton v. Lord Mohun (a), it is said, "As to the want of a formal assignment of dower, that is nothing in equity; for still the right in conscience is the same; and if the heir brings a bill against the mother for an account of profits, it is most just that a Court of Equity should, in the account, allow a third of the profits for the right of dower." The statutes 18 Geo. 2. c. 18. s. 5. and 20 Geo. 3. c. 17. s. 12. which relate to the right of voting at elections, treat the assignment of dower as a mere ceremony. But it may be contended in this case, that in point of fact there has been a valid assignment of dower to this pauper. According to the facts stated in the case, the husband mortgages the estate for a term of 1,000 years, to secure the repayment of 1007. subject to the remote and almost nominal reversionary interest of the heir, who is an idiot, and who consequently cannot execute an assignment. The mortgagee is the person in whom the whole present interest is vested, and he pays a certain sum of money to the widow as her dower, and which sum is accepted by her as such. [Abbott, C. J. How could his payments of the dower prejudice the rights of the heir?] In Co. Lit. 34 b. it is laid down, first, that dower may be assigned by the tenant by consent and agreement; second, that an assignment of dower requires neither livery of seisin, nor writing, but may be by parol, because it is due by common right; and third, that it may be by a rent issuing out of the land as well as by parcelling out the land by metes and bounds. [Abbott, (a) 1 P. Wms. 122. |