1824. The KING v. C. J. Here there is no tenant of the land. A mortgagee in not Marryat (with whom was Jessopp and Knox) contrà.— It is perfectly clear that there was no assignment of dower in this case, and therefore, dower unassigned, is not such an estate as will either confer a settlement, or prevent the pauper from being removed. Undoubtedly a person may be irremoveable without having acquired settlement, but that is upon the principle that the party is irremoveable " from his own." That is the language of the law in a numerous class of cases. The case of Rex v. Horsley does vary the proposition, because there the party had a right to the property as sole next of kin, and had by statute the entire equitable interest until administration was taken out, and nobody else could have taken out administration without her concurrence. In all the decisions upon the head of settlement by estate, the pauper must have the right of possession. That was the very principle upon which Rex v. Berkswell, cited on the other side, was decided. In the present case, the pauper had no legal right of possession until there was a valid assignment of her dower, and if she attempted to enter, she would be a trespasser. The legal title to the freehold was in the heir, who alone had the right of possession, subject to the widow's dower, which may be assigned either by himself, by the sheriff, or by any of the other modes prescribed by law. The answer to the argument on the other side is, that here the pauper had nothing of her own, from which it can be said she was irremoveable. Rex v. Painswick is a decisive authority to shew, that without an assignment of dower, the widow had no estate in the land which can be called her own. Here the Court stopped him. The INHABITANTS NORTHWEALD BASSETT. 1824. The KING 0. The INHABITANTS of NORTHWEALD BASSETT. ABBOTT, C. J.-As it is agreed on both sides, that there was in fact no assignment of dower, I am clearly of opinion that the pauper in this case had not any such interest as would entitle her to the possession of any part of the estate as her own, so as to render her irremoveable. Rex v. Painswick seems to be a decisive authority; and as that case has never been impeached by any subsequent decision, I think we are bound by it, and consequently the order of Sessions must be quashed. BAYLEY, J.-There being an express decision on the point, unless we could see that that decision was wrong, we ought to abide by it. The King v. Painswick is, I think, a decisive authority upon this question. Here the pauper would never have a right of occupation; for so long as the thousand years term continued, the right of occupation would be in the termor, and whatever right she might have, could only be by assignment, which in fact has never taken place. In Rex v. Painswick the widow, after her husband's death, continued residing on the property, and there was a clear possession for forty days. The Court there decided, that, inasmuch as it was a legal right of possession in her, under the statute of Magna Charta, by which the widow would be irremoveable for forty days, she might therefore gain a settlement. She afterwards continued to reside upon the property, and she married again, and she and her second husband lived upon it for about two years. Now if the right of dower unassigned would confer a settlement on the party who was residing upon the estate out of which the dower was to issue, the husband would have been irremoveable during the whole of that time. The question in that case was, whether the children of the second marriage were settled in the parish in which the mother and father had so resided; and the Court held that they were not. Why? Because the right to have dower assigned, and residing upon the estate on which the mother was entitled to have dower assigned, was not sufficient to communicate a settlement to the husband and the children, the dower not having been, in point of fact, actually assigned, That case is precisely like this in principle, and we ought to be bound by it. 1824. The KING V. The of BASSEIT. HOLROYD, J.-I think the decision in Rex v. Painswick INHABITANTS is decisive of the present case, unless we could see that it NORTHWEALD was determined upon a wrong principle. We should not be authorized in disturbing it, unless there was reason to doubt the propriety of it. I see no reason for saying that it is wrongly decided, and therefore on the authority of that case I am of opinion that we ought to quash this order. LITTLEDALE, J. was in the Bail Court. Order of Sessions quashed. MORGAN V. PALMER. Tuesday, ancient bo ASSUMPSIT for money had and received by the de- Where the fendant to the use of the plaintiff. Plea non assumpsit, mayor of an and issue thereon. At the trial, before Garrow, B. at the rough, in which he was Norfolk Lent Assizes, 1823, the plaintiff had a verdict, subject to the opinion of the Court, upon the following case: also a justice of the peace, took a fee of 4s. from a publican resident within the borough, for The plaintiff is a publican, in the borough of Great Yarmouth, where he resided and carried on business in the year 1822, during which year the defendant was mayor of the renewing his borough. In the month of September, 1822, a meeting was duly held by the defendant, who, in his character of mayor, was then one of the justices of the peace in and annual license, and though it appeared that for fifty-seven years a similar fee had been uniformly re for the borough, and by another justice of the peace in and for the borough, for the purpose of renewing the annual ceived by the mayor for the licenses of the publicans in the borough. The plaintiff time being, attended at that meeting, in order to renew his license, and the clerk to the said justices, who is also town clerk and in the borough from every publican with applying to have his license: Held, that such fee was illegal, and might be recovered back in assumpsit for money had and received, without notice of action. 1824. MORGAN v. PALMER. clerk of the peace for the borough, on granting to the plaintiff his license, demanded a sum of 12s. 6d. which the plaintiff accordingly paid. The clerk then paid over to the defendant a sum of 4s., part of the said sum of 12s. 6d., which he had received on the account and by the authority of the defendant as mayor. He also paid over the sum of 25., other part of the said sum of 12s. 6d., to the serjeants at mace, and retained the sums of 4s. 6d. as clerk to the justices, and 2s. as clerk of the peace, the residue thereof, to his own use. Great Yarmouth is an ancient and immemorial borough. Until the reign of Queen Ann, the chief officers of the corporation were two bailiffs. Various charters, from the reign of King John to that of Queen Ann, granted to the bailiffs all ancient and usual perquisites, fines, emoluments and profits, which they had before by pretext of any incorporation, or by reason or pretence of any prescription, use, or custom, held, enjoyed, or used. By an act 1 Ann. st. 2. c. 7. it was enacted, that when the style of the corporation should be changed from that of bailiffs, aldermen, burgesses and commonalty, to that of mayor, aldermen, burgesses and commonalty, the mayor and his successors should have and enjoy all the same fees, perquisites, privileges and jurisdictions, as the bailiffs had before lawfully claimed and demanded. By a charter in the following year, the style of the corporation was changed, and it was thereby provided, that the first mayor therein named and his successors, should have and enjoy the same powers, privileges, fees, perquisites and profits, as the bailiffs in any manner had before held and enjoyed, within the liberties and precincts of the said borough. No entries were made of the sums paid for licenses in the books of the corporation, but as far back as living memory went, that is to say, from the year 1765, up to the time of bringing this action, the same sum of 4s. had been uniformly received by the mayor for the time being, from every publican applying for a license, as his usual and accustomed fee for granting it. No notice of the action was given previously to its com mencement. Rolfe, for the plaintiff. There are three questions in this case. First, Whether the defendant was entitled, under the 24 G. 2. c. 44. s. 1. as a justice of peace, to a month's notice of action, previous to the suing out of the writ. Second, Whether the defendant was justified, either by any statute-law, or prescription, in demanding and receiving from the plaintiff the sum of 4s. previous to granting him a license. And third, Whether the plaintiff, having paid that money, can recover it back, in an action for money had and received. For the plaintiff, it is submitted, that the Court must answer the first two of these questions in the negative, and the third in the affirmative; the second, however, seems to be the most important, and may with most advantage be argued first in order. The first statute which regulated the sale of beer in alehouses, by means of licensing the proprietors, was the 5 & 6 E. 6. c. 25. which recites that "intolerable hurts and troubles to the commonwealth of this realm doth daily grow and increase, through such abuses and disorders as are had and used in common alehouses, and other houses called tippling-houses," and enacts that no person shall in future sell ale or beer without a license, to be granted by the Sessions, or by two justices of the peace; and that every person so licensed, shall be bound by recognizance for the proper conduct of his house, "for making of every which recognizance, the party so bound shall pay but twelve-pence." There are many subsequent acts of parliament upon the same subject, but the only one which it is material to notice, is the 3.G.4. c. 77. s. 5. which provides that for filling up the license, and for taking and returning the recognizance to be entered into, the sum of five shillings, and no more, shall be taken by the justice's clerk, over and above the fees to be paid to the several clerks of the peace for filing the recognizances. If, therefore, the defendant was entitled to exact from the plaintiff the sum of 4s. upon granting him a license, it is clear that he cannot derive his title from the statute book, and it remains to be seen, whether by the prescription in 1824. MORGAN v. PALMER. |