Sidebilder
PDF
ePub

1806. mitation to take place in default of appointment would

The Kino Dean estate tail, but we think this devise gives equally a

theL^ and Power °^ appointment in fee. It is not necessary to give

Steward of an opinion upon that subject, yet when the words 'mao

the Manor of ner an(j fonnare use(j wjt^ t),ose applicable to a division

in parts and shares, something more must be understood in order to give effect to all thewords, than a mere power of unequal division of the estate in a limited descent: and if so, it must be a power to appoint in fee. Under this power the children might have an estate in fee given to them; theu how can we say that by the limitation appointed as a substitution of the power, the testator did not give as large an estate as, under the power, might have been given to the children- and their heirs. The limited construction contended fin, upon the words in default of such issue,did not prevail in Doe d. Comberbach v. Perryn, though the authority of Ives v. Legge was much pressed, and in Doe d. Perryn, Mr. Justice Bu/ler laid it down that' issue' and 'children' were synonymous. The limitation over in Tves v. I.egge was ' in default thereof.* As to the argument of a difference between the authorities upon the words, " if he dies withoutlssue, and in default of such issue" this is a distinction without a difference. His lordship then noticed the want of the leasing power in this case, which was in the case of Doe d. Comberbach v. Perryn, and again considered the effect of the power of appointment, and observed that the testator might possibly have meant a general failure of issue. He observed also that in Lewis d. Ormond v. Waters, it was clear the testator meant that the sons, should take estate in succession, which could only be, by taking estate tail. ..

Rule Absolute for the - 1 ',

PEKliMrTOUY MANDAMUS. \

The King against the West Riding of the County of imYork June Qlst. .

Where the road at theend of a public bridge for 300 yards lay County, bridge. in several-parts ofapamhcalled Mcars, and was out of repair, H-gi^TMTM1' and the county was indictedfor -not repairing, and pleaded Pleading. not guilty; held, vpon special verdict, that upon such a plea evidence of ancient usage fur the mears to repair, and nut the comity was inadmissible, and there must in such a case be a xerdict for the croxen upun the plea oj not guilty, if the bridge be a public bridge, and the ruad out of repair.

JND{CTM ENT states that from the time whereof TheKmo the memory of man is not to the contrary, there was ,

* . * . tlic Inhabitants

and yet is a certain common and ancient king's high- oftheWesi way, leading from the market town of Manchester in ^y^^ the county palatine of Lancaster, in, through, and over the township of Quick in the west riding of the county of York aforesaid, used for all the liege subjects of < our said lord the king, and his predecessors for theinselves-and with their horses, coaches, carts, and carriages, logo, return, pass, ride, and labour, at their will and pleasure;,. and that certain parts of the same king's ,.CQmmon highway at the Said township of Quick, in , the said west riding of the said county of York, (to . wit,) a certain part thereof lying next adjoining to the West end of a certain public bridge called Tamcwaier bridge, and within the distance of 300 feet thereof, beginning at the west end of the said public bridge there, and extending from thtMice westwards,. contain* ing in length forty-five feet and in breadth twentyone feet, and a certain other part thereof, lyiug next adjoining to the .east end of the said bridge, and ex-, tending from thence eastwards, containing in ltn0th

1806. 150 feet, and in breadth 21 feet, on the 2d day of The Kiko March in the 42d year'of the reign of our sovereign vtrm$ ]ord Geo. ///. now king of the united kingdom of of tut Wc-t Great Britain and Ire/and, defender of the faith, and R*"8°' continually afterwards, until the day of the taking of this inquisition at the said township of Quick, in the west riding of the county of York aforesaid, was and yet is, very ruinous, niiry, deep, broken, and in such decay for want of the due reparation and amendment of the same ; so that the liege subjects of our said lord the king, through the same way with their horses, coaches, carts, and carriages, could not during the time aforesaid, nor yet can go, return, pass, ride and lubour, without great danger of their lives and the loss of their goods, to the great damage and common nuisance of ail the liege subjects of our said lord the king, through the same way going, returning, parsing, riding, and Jabouring, and against the peace of our said lord the king, his crown and dignity, and against the form of the statutes in that case made and provided. And that the inhabitants of the west riding of the said county of York, the common highway aforesaid, (so as aforesaid being in decay,) of right ought to repair and amend, when and so often as it shall be necessary. To this indictment the defendants plead the general issue, not guilty. And the jurors of the said jury by the sheriff of the said county of York, for this purpose impannelled and r» turned,to wit,8cc. at Sic. being called, come, who being tried and sworn to speak the truth of and concerning the premises in the indictment aforesaid,above specified upon their oath do say that from the time whereof the memory of man is not to the contrary, there was and jet is a certain common and ancient king's highway leading from the market town of Uuddrrsfir/d, in the west riding of York, towaichs aud into the market

[ocr errors]

own of Manchester, in the county palatine of Lancas- i806. er, in, through, and over the township of Quick, in the TheicTNo .vest riding of the county of York aforesaid, and across verm i certain river called the river Tame there flowing, '^'"he'wert ind being used for all the liege subjects of our lord *i<Jingof he present king and his predecessors, for themselves ind with their cattle, coaches,carts, and carriages, to go, return, pass, ride, and labour at their will and pleasure; and that, from the said time whereof the memory of man is not to the contrary, until within the time of the memory of persons now living, there was no bridge, (except a certain foot-bridge) across or over the said river Tame at the township of Quick aforesaid, for the use of persons going, returning, passing or repassing in or along the said common king's highway at the township of Quick aforesaid, by themselves or with their cattle, coaches, carts, or carriages; but all persons having occasion to go, return, pass or repass in and along the said highway with their cattle, coaches, carts,or carriages across the said river at the township aforesaid,went,returned,passed, and repassed during all the time aforesaid, until the time last-mentioned with their cattle, coaches, carts and carriages, in and along the said highway across the said river at the township aforesaid ; in, through, and across a certain ford there; and all persons having occasion to go, return, pass or repass in and along the said highway on foot across the said river at the township aforesaid, went, returned, passed and repassed before and until, and at the time last mentioned, on foot upon, along, and over the said footbridge erected and being at the township aforesaid, over and across the said river there, a little higher up the said river than the said ford. And the jurors aforesaid, upon their oath aforesaid, do further »ay that before the year of our lord 1756, a certain stone bridge called Tamtxcatcr bridge, was erected by s-bscription at the township aforesaid, across and over

ii!06. the said river there, about five or six yards higher-op TI,e Klk0 the said river than the said ford ; for the purpose tiiat persons having occasion to return, pass or repass

[ocr errors]

%i»nheyv*tt* in antl along the said highway across or over toe *aid Hiding of rtV€f at tne township aforesaid with their cattle, coaches, carts, orcarriages, might and should go, return, pass and repass upon, along, and over the said stpnebridge, and the same continued so there erected and being until the same, afterwards,aod about the year of our lord \7S(i, was swept away by a flood, when the same w as thereupon rebuilt with stone by voluntary subscription?, and made a lillLe larger than the fanner bridge, and erec ted al the end of the said highway, next the said river, for the purpose last aforesaid, and continued so erected and built ,for that purpose until the month of Jugmt in the year of our lord 17U9i • When the same was again swept away by a flood, and thereupon the same was rebuilt with stone for the purpose last aforesaid, by and at theexpence of the inba-i bitants of the west riding in the said county of York, and was completed and finished on or before the 2d day of March, in the 42d year of the reign of our said lord the king, the day in the said indictment mentioned, and from tliepce hitherto hath been and still is there erected, and being for the purpose last aforesaid, and that the said respective stone bridges during the respective times of the continuance thereof respectively have been publicly used by persons going, returning, passing and repassing in and along the said highway at the township aforesaid across and over the sanl river, there and during these respective times have, been, and are of great public use and benefit, anti that tfie same bridge so rebuilt, as last aforesaid, hath been maintained and repaired, and was and is maintainable and reparable by the inhabitants of the said riding. And the jurors aforesaid upon their oath aforesaid, do further say that the said stone bridge so last built as

« ForrigeFortsett »