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1806. mitation to take place in default of appointment would The Kuro be an estate tail, but we think this devise gives equally a

power of appointment in fee. It is not necessary to give the Lord and I STEWARD of an opinion upon that subject, yet when the words'manthe Manor of ner and forin’are used with those applicable to a division CHERTSEY.

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; then 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 for, upon the words in default of such issue, did not prevail in Doe d. Comberbach v. Perryn, though the authority of lves v. Legge was mucb pressed, and in Doe d. Perryn, Mr. Justice Buller laid it down that' issue' and • children’ were synonymous. The limitation over in Ives v. Legge was ' in default thereof. As to the argue ment of a difference between the authorities upon the words, " if he dies withoutissue, 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 Doc d. Comber. bach v. Perryn, and again considered the effect of the power of appointment, and observed that the teslator 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 is

PEREMPTORY MANDAMOS

· The King against the West Riding of the County of

. . . . .YORK.-June 21st..

1806.

repair, Hidictm

In special verrepairing, and

versus

Where the road at the end of a public bridge for 300 yards lay County, bridge. ! in several parts of a parishcalled Mears, and was out of repair, Highway

indictinent. and the county was indicted for not repairing, and pleaded Pleading.

not guilty'; held, upon special verdict, that upon such a · plea evidence of uncient usage for the mears to repair, and : not the county was inadmissible, and there must in such a

case be a rerdiet for the crown upon the plea of not guilty,

if the bridge be a public bridge, and the road out of repuir. INDICTMENT states that from the time whereof The King

the memory of man is not to the contrary, there was he and yet is a certain coinmon and ancient king's bigh- of the West way, leading from the market town of Manchester in the county palatine' of Lancaster, in, through, and over the towuship 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 themselves and with their horses, couches, carts, and carriages, to go, return, pass, ride, and labour, at their will and pleasure ;, and that certain parts of the same king's

cominon 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 Tamewater bridge, and within the distance of 300 feet thereof, beginning at the west end of the said public bridge there, and extending from thence westwards, contains ing in length forty-five feet and in breadth (wentyone feet, and a certain other part thereof, lying next adjoining to the east end of the said bridge, and exz teuding froin Thence eastwards, containing in len, tha

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1806. 150 feet, and in breadth 21 feet, on the ed day of e Kino March in the 42d year of the reign of our sovereign

versus lord Geo. III. now king of the united kingdom of the. Inhabitants of tbe West Great Britain and Ireland, defender of the faith, and Riding of continually afterwards, until the day of the taking of YORK,

this inquisition at the said township of Quick, in the west riding of the county of York aforesaid, was and yet is, very ruinous, miry, 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 labour, without great danger of their lives and the loss of their goods, to the great damage and common nuisance of all the liege subjects of our said lord the king, through the same way going, returning, passing, riding, and Jabouring, and against the peace of our said lord the king, bis crown and dignity, and against the form of the statutes in that case made and provided. And that the inbabitants 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 returned, to wit,&c. at &c. being called, come, who being tried and sworn to speak che truth of and concereing the premises in the indictment aforesaid, above specified upon their oatli do say that from the time whereof the memory of man is not to the contrary, there was and yet is a certain common and ancient king's highway leading from the market town of Huddersfield, in the west riding of York, towards and into the market 1806.

Tho KINO

versus : the Inhabitants

Riding of
YORK.

town of Manchester, in the county palatine of Lancas
ter, in, through, and over the township of Quick, in the
west riding of the county of York aforesaid, and across
a certain river called the river Tame there flowing,"
and being used for all the liege subjects of our lord
the present king and his predecessors, for themselves
and 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 bighway at the
township of Quick aforesaid, by themselves or with
their cattle, coaches, carts, or carriages; but all per-
sons having occasion to go; return, pass or repass in
and along the said highway with their cattle, coacbes,
carts, or carriages across the said river at the township
aforesaid,went, returned,passed, and repassed during all
the time aforesaid, votil 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 bighway on foot across
the said river at the lowoship aforesaid, went, returned,
passed and repassed before and until, and at the time
last inentioned, on foot upon, along, and over the said
footbridge erected and being at the township afure-
said, over and across the said river there, a little high-
er up the said river than the said ford. And the
jurors aforesaid, upon their oath aforesaid, do further
say that before the year of our lord 1756, a certain
stone bridge called l'amewater bridge, was erected by
subscription at the towasbip aforesaid, across and over

1:06. the said river there, about five or six yards higher-20 The Kixo the said river tban the said ford; for the purpose that

versus persons baving occasion to returo, pass or repas thebhabitants of the West in and along the said highway across or over the said Riding of river at the township aforesaid with their cattle, York.

coaches, carts, or carriages, might and should go, selura, pass and sepass upon, along, and over the said stone bridge, and the same continued so there erected and being until the same, afterwards, and abunt the year of our lord 1756, was swept away by a flood, when the same was thereupon 'rebuilt with stone by voluntary subscriptions, and made a little larger than the former bridge, and erected at the end of the said highway, next the said river, for the purpose last aforesaid, and continued so erected and built for that purpose unui the month of August in the year of our lord 1799, · 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 the expence of the inhabitants of the west riding in the said county of York, and was completed and finished on or before the bed 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 thence hitherto haib 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 re: spectively 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 sard river, there and during these respective times have, been, and are of great public use and benefit, and that the same bridge so rebuilt, as last aforesaid, hath been maintained and repaired, and was and is maintainable

and reparable by the inbabitants of the said riding. · And the jurors aforesaid upon their oath aforesaid, she further say that the said stone bridge so last built as

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