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Nos. 1, 2. — Howe v. Earl of Dartmouth ; Pickering v. Pickering. — Notes.

her surviving, he directed that in such event the gift in his will in favour of his wife should take effect as if the name of G. M. had been substituted therein for that of his wife. Part of the testator's estate consisted of a reversionary interest in a trust fund. It was held that, having regard to the form of the gift in the codicil, the testator intended that the property should be enjoyed in specie, and that the reversion ought not to be sold. It was argued for G. M. (the plaintiff) that the rule in Howe v. Lord Dartmouth, as to the conversion of wasting property, was confined to the case of tenant for life and remainderman, and had never been extended to an absolute gift subject to an executory limitation over in a certain event. Upon this argument STIRLING, J., observed: “I am not prepared to say that the rule in Howe v. Earl of Dartmouth can never apply to a case of an absolute gift subject to an executory limitation; but I think that the inference as to the intention of the testator upon which that rule is based is weaker in such a case than where the testator has given his property to persons successively as tenants for life and remaindermen. And even in a case where the rule in Howe v. Earl of Dartmouth is strictly applicable, an inference of an intention to the contrary has been drawn from the terms of the gift over. That question was very much discussed by Lord COTTENHAM, L. C., in Pickering v. Pickering."

AMERICAN NOTES. In America, following the earlier English cases, the rule of the common law was at first thought to be that a gift of personalty for life carried the absolute interest, although its use might be given for life, and that a remainder in chattels could not be created after a life estate, at least by deed. Later, however, a gift for life was regarded as a gift of the use only, and the remainder over was held good, especially when created by will. See Morrow v. Williams, 3 Devereux (N. C.), 263; Powell v. Brown, 1 Bailey (S. C.), 100; Betty v. Moore, 1 Dana (Ky.), 235, 237 ; Langworthy v. Chadwick, 13 Connecticut, 42; Evans's Appeal, 51 id. 435, 438; Harrison v. Moore, 64 id. 344; Rathbone v. Dyckman, 3 Paige (N. Y.), 1; Waln's Estate, 189 Pennsylvania State, 631 ; Martin v. Martin, 170 Illinois, 18. Such limitations are not favored, and the Courts will incline against their creation either by devise or by deed, when the words employed are not clear and definite. Brewster v. McCall, 15 Connecticut, 274, 291.

As to the rule of Apportionment, discussed in the English note, it is usually held in America, following the English decisions, that when a corporation declares a stock dividend as an addition to its capital stock, it is to be treated as capital as between a life-tenant and the remainderman, while cash divi. dends belong to the former as an increment of each share. Gibbons v. Mahon, 136 United States, 549; Slocum v. Ames, 19 Rhode Island, 401; Mills v. Britton, 64 Connecticut, 4; Minot v. Paine, 99 Massachusetts, 101 ; Daland v. Williams, Nos. 1, 2. — Howe v. Earl of Dartmouth ; Pickering v. Pickering. — Notes.

101 id. 571; Davis v. Jackson, 152 id. 58; Thomas v. Gregg, 78 Maryland, 545; Offutt v. Dirine (Ky.), 53 Southwestern Rep. 816; see 19 American Law Review, 571, 737. In a recent case the Court of Appeals in New York held that it was not within the power of corporations, in declaring dividends, to determine whether such dividends should become capital or income of an estate ; that the rights of the life-tenant and remainderman depend wholly upon the intention of the testator as derived from the face of the will and surrounding circumstances; and that when separate trusts are created by will in favor of each of different living persons, who are to be entitled to the respective incomes until they reach a certain age, when they are to receive the corpus, such beneficiaries are life-tenants before attaining such age, and remaindermen thereafter. McLouth v. Hunt, 154 New York, 179; see Re Hoyt, 160 id. 607 ; In re Rogers, 161 id. 108; Jermain v. Sharpe, 61 New York Supplement, 700. In Pritchitt v. Nashville Trust Co., 96 Tennessee, 472, it was held that stock dividends declared from a corporation's net earnings which were made after the death of the testator who bequeathed his original stock for life, belong to the life-tenant as income. Under a bequest of certain shares of corporate stock to one for life with remainder over, if the life-tenant dies between the dividend days, the dividend accruing next after his death, unless the testator's intention be clearly otherwise, is not apportioned between the two interests, but it belongs wholly to the owner of the stock at the time it is declared. Mann V. Anderson, 106 Georgia, 818.

The rule adopted in Massachusetts, that upon a devise in trust to pay the income to one class, and finally to another class, repairs upon the property are to be paid from the income, and permanent improvement from the capital, doubtless applies to personalty as well as to real estate. Little v. Little, 161 Massachusetts, 188.

Upon a specific gift for life of chattels which will be consumed, or perish in the use, the tenant for life is clearly entitled to use and exhaust them; but when such a gift is residuary, the articles should be sold by the trustee and the proceeds invested so that the life-tenant may receive his interest, and the principal be preserved for the remainderman. Clark v. Clark, 8 Paige (N. Y), 152, 155; Tyson v. Blake, 22 New York, 558; Scott v. Perkins, 28 Maine, 22; Shaw v. Hussey, 41 id. 495; Saunders v. Haughton, 8 Iredell’s Equity (N. C.), 217; Calhoun v. Furgeson, 3 Richardson Eq. (S. C.) 165; Eichelberger v. Barnetz, 17 Sergeant & Rawle (Penn.), 293. In Crawford v. Clark, 110 Georgia, 729, 733, it was held that, as money may be lost, but should not be destroyed in the use, a remainder may be created therein, and that an executory bequest of money, limited upon a definite failure of issue, is valid.

Compulsory partition of personalty cannot be enforced by a remainderman of an undivided interest, as he bas not the necessary right of possession. Conter v. Herschel, 24 Nevada, 152. As to requiring security from a tenant for life of personal property for the benefit of the remainderman, see Allen v. De Groodt, 98 Mo. 159, 14 American State Reports, 626, 629, note.

No. 1. — Ashby v. White and others. — Rule.


See also No. 4 of “ABATEMENT,” i R. C. 183 et seq.; " ACCIDENT,” 1 R. C. 203 et seg.; " ACTION," I R. C. 521 et seq., passim ; No. 14 of “ AGENCY," 2 R. C. 409 et seq.; “ ANIMAL,” 3 R. C. 76 et seg., passim ; “ CARRIER,” 5 R. C. 243 et seg.; Sects. 1-4, passim ; “DAMAGES," 8 R. C. 360 et seq.; “ DEFAMATION,"9 R. C. 1 et seq. ; “ FRAUD,” 12 R. C. 235 et seq. ; “ Malicious PROSECUTION," 16 R. C. 742 et seq. ;“ MASTER AND SERVANT,” Nos. 4-14, 17 R. C. 212 et seg.; "NEGLIGENCE,” 18 R. C. 621 et seq.; 19 R. C. 1-237, passim ; “NUISANCE,” 19 R. C. 263 et seg.

No. 1. – ASHBY v. WHITE.

(K. B. 1701.)

No. 2. — TOZER v. CHILD.

(EX. CH. 1857.)

RULE. An action lies against a person who wilfully and with intent to do harm hinders another in the exercise of his lawful right.

Ashby v. White and others.

Election of Member of Parliament. Right to Vote. Remedy by Action. An action lies by the person having a right to vote against the official maliciously refusing to receive the vote.

A report of the judgment of Lord Chief Justice Holt, as printed and published in 1837 (see notes, p. 18, post), is as follows:

The plaintiff in this action declares that the 26th of December, in the twelfth year of King William the Third, a writ issued out of Chancery directed to the sheriff of Bucks, reciting, that the King had ordered a Parliament to be held at Westminster on the 6th of February following. The writ commanded the sheriff to cause to be elected for the county two knights, for every city two citizens, for every borough two burgesses, which writ was delivered to the sheriff, who made a precept in writing under the seal of his office, directed to the constables of the borough of Aylesbury, command

No. 1. — Ashby v. White and others.

ing them to cause two burgesses of the said borough to be elected, &c., which precept was delivered to the defendants, to whom it belonged to execute the same; by virtue of which writ and precept, the burgesses of that borough, being summoned, did assemble before the defendants to elect two burgesses. And they being so assembled in order to make such election, the plaintiff, being then a burgess and inhabitant of that borough, * being [* 2] duly qualified to give his vote at that election, was there ready and offered his vote to the defendants for the choice of Sir Thomas Lee, Baronet, and Simon Mayne, Esq., and the defendants were then required to receive and admit of his vote. The defendants being not ignorant of the premises, but contriving and fraudulently and maliciously intending to damnify the plaintiff, and to defeat him of that his privilege, did hinder him from giving his vote, and did refuse to permit him to give his vote, so that the two burgesses were elected without any vote given by the plaintiff, to his damage, &c.

Upon not guilty pleaded, the cause went down to trial, and a verdict was given for the plaintiff, and £5 damages and also costs.

After this verdict given it was moved in the Court of Queen's Bench in arrest of judgment, That this action did not lie, and that point was argued by counsel, and afterwards by the Court.

Mr. Justice POWELL, Mr. Justice Powys, and Mr. Justice GOULD were of opinion that judgment in this case ought to be given for the defendants; but the Lord Chief Justice Holt being of a different opinion, gave his reasons for the same in the following argument, viz. :

I am of opinion that judgment in this case ought to be given for the plaintiff.

To maintain which I lay down these three positions :

1. That the plaintiff, as a burgess of this borough, hath a legal right to give his vote for the election of Parliament burgesses.

2. That as a necessary consequence thereof, and an incident inseparable to that right, he must have a remedy to assert, vindicate, and maintain it.

3. This is the proper remedy which the plaintiff hath * pursued, being supported by the ground, reasons, and prin- [* 3] ciples of the common law of England.

For the first, which is to show the plaintiff hath a right to give his vote at the election of Parliament burgesses for this borough.

No. 1.- Ashby v. White and others.

It is very well known that always the Commons of England had, and still have, so considerable a share in the property of the nation, that from thence, in this well-balanced government, they become justly entitled to an equal share in the Legislature of this kingdom, without whose consent no tax can be imposed nor law enacted; but because of the immense number of individuals which constitute that vast body, it was impossible to have it executed by them in person; it was therefore so established in the original constitution that a convenient and proportionable number from amongst themselves should by them be chosen and appointed, and invested with a plenary authority to deliberate, advise, and determine, for themselves and those who sent them.

For which purpose, by the wisdom of those who founded this constitution, the realm was divided into several districts, under several and distinct considerations.

For the counties, which are the great divisions of the realm, the • freeholders are to choose two knights, the citizens of the cities two

citizens, and the burgesses for every borough two burgesses; all these so chosen and assembled make a complete representation of all the Commons of England, and therefore virtually and legally are, when assembled, all the Commons of England assembled in Parliament. For the first of these, which are knights for the shires, they

represent all the freeholders of the counties; they are called [* 4] knights, not, as some modern authors (not so * entirely

affected to our constitution as they ought to be) would suppose, because chosen only by those who were tenants by knight service, for they were chosen by all the freeholders of the county, who were to assemble at the County Courts, where the elections were made, but because, anciently, the most eminent and considerable of the county were tenants by knight service. The representative so chosen received that denomination, a digniori parte, for tenants in socage voted promiscuously with them, and every one of the inferior tenants that had a freehold had as much right to give his suffrage as the most eminent freeholder of the county that held great manors by knight service; which right is a part of his freehold, and inherent in his person by reason thereof, and to which he hath as good a title as to receive the natural profits of his soil, as appears by the statute 8 Hen. VI. c. 7, which recites the great inconvenience which did arise in the election of

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