Lord TENTERDEN, C. J. As to the first point I am of opinion that the rule of computing the thirty years from the date of a deed is equally applicable to a will. The principle upon which deeds after that period are received in evidence, without proof of the execution, is, that the witnesses may be presumed to have died. But it was urged that when the existence of an attesting witness is proved, he must be called. That, however, would only be a trap for a nonsuit. The party producing the will might know nothing of the existence of the witness until the time of the trial. The defendant might have ascertained it, and kept his knowledge a secret up to that time, in order to defeat the claimant. As to the other point, it must at all events be admitted, that the death of the grandfather's brothers might be presumed, and then, in order to raise the objection, two affirmatives must be presumed; viz. that they did marry, and did leave issue. I think that would be very unreasonable, and that the direction of the learned Judge was right.

Rule refused.

DOE, on the demise of the Honourable HENRY WATSON, Clerk, v. B. W. FLETCHER, Clerk.-p. 25.

Where a party was presented to a rectory in consideration of his having given a bond to resign in favour of a particular person, at the request of the patron, and was instituted and inducted, and such bond was held to be void, on the ground that it was simoniacal, and the king then presented A. B., and he was instituted and inducted: Held, that he might maintain ejectment for the rectory against the person who had been simoniacally presented.

THIS was an ejectment brought to recover the rectory of the parish church of Kettering, in the county of Northampton, with the appurtenances; and also the rectory manor of Kettering, otherwise called the rectory manor, with the rights, members, and appurtenances to the said manor belonging; and also all tithes of corn, &c., arising and growing within the parish of Kettering, demised by the Honourable H. Watson, clerk, to the plaintiff for a certain term not yet expired. Plea, not guilty. At the trial before Holroyd, J., at the last assizes for the county of Northampton, it appeared that the defendant had been presented to the rectory of Kettering by Lord Sondes in 1814, and that he was inducted on the 14th of October in that year, and on that occasion entered into a bond with a penalty of 12,000l., the condition of which, after reciting "that Lord Sondes was the patron of the rectory which had then become vacant by the death of J. Knight, the late incumbent, and that Lord Sondes, by deed bearing equal date with the bond, had presented Fletcher (the defendant) to supply the vacancy, and to be rector, in order that he might be instituted and inducted thereto by the ordinary; and that Fletcher had agreed to resign the rectory into the hands of the ordinary upon such request and notice as therein mentioned, so as that the said rectory might thereby again. become vacant, to the intent and for the sole and only purpose that Lord Sondes might be enabled to present thereto either Henry Watson or Richard Watson (his brothers,) when such of them as should be so presented should be capable of taking an ecclesiastical benefice," was, that Fletcher should, upon the request of Lord Sondes, resign the rectory and parish church of Kettering, with the appurtenances, in order that he, Lord Sondes, might present to the said rectory either Henry Watson or Richard Watson, when such of them as was to be so presented should be capable of taking an ecclesiastical benefice. This bond was held by the House of Lords, in

1826, to be void, 3 Bing. 501. The King, on the 26th of July, 1827, presented H. Watson, the lessor of the plaintiff, to the rectory; and he, notwithstanding impediments, read himself in so as to comply with the statutes. 13 & 14 Car. 2, c. 6, s. 1. It was contended that the action of ejectment was not maintainable, and that the plaintiff ought to have proceeded by quare impedit. The learned judge overruled the objection, and a verdict was found for the plaintiff; but liberty was reserved to the defendant to move to enter a nonsuit.

Clarke now moved accordingly. The action of ejectment was not maintainable. The defendant was presented, instituted, and inducted into the rectory; he was therefore in possession; the church was full, and he could only be removed by quare impedit; Rex v. The Bishop of Norwich, Cro. Jac. 385.

Lord TENTERDEN, C. J. The lessor of the plaintiff had been presented, instituted, and inducted. He was therefore put into corporeal possession of the church, with the rights thereto belonging, and ejectment therefore was Luaintainable. Quare impedit is the proper reinedy where the church is full; but here the church was void, because the presentation, institution, and induction of Mr. Fletcher having been made in consideration of the resignation bond which was simoniacal, were void by the statute 31 Eliz. c. 6, and the right for that turn belonged to the King. The church, therefore, was not full at the time when the lessor of the plaintiff was presented.

Rule refused.(a)

(a) See Winchcombe v. The Bishop of Winchester, Hob. 165.

The KING v. The Inhabitants of ASHLEY HAY.-p. 27.

Since the statute 6 Geo. 4, c. 57, in order to gain a settlement by settling upon a tenement, the reserved rent for one whole year (whatever be its amount) must be paid.

UPON appeal against an order of two justices for the removal of J. Sneap, his wife and children, from the township of Ashley Hay, in the county of Derby, to the township of Mugginton, in the same county; the sessions quashed the order, subject to the opinion of this Court on the following case:

At Lady-day 1825, the pauper, J. Sneap, being legally settled in Mugginton, hired a farm in Ashley Hay by the year, at the rent of 547. per annum, payable half-yearly. He held and resided upon the said farm for more than twelve months, and he paid rent on account of the same to the amount of 407., but he did not pay a whole year's rent for the same prior to his becoming chargeable to and his being removed by Ashley Hay township. He was, prior to the 22d of June, 1825, charged in respect of the farm in two assessments for the relief of the poor, and with the public taxes of Ashley Hay township, and applications were made to him for payment of such taxes prior to the said 22d of June, 1825, but he did not pay the same till after the 10th of July, 1825.

N. R. Clarke in support of the order of sessions. The pauper gained a settlement in Ashley Hay by reason of his having rented a tenement at an annual rent exceeding the value of 107., and having paid more than 107. on account of one year's rent. The question raised by this case (which was reserved by the sessions before Rex v. Ramsgate, 6 B. & C. 712, was published) is, whether the statute 6 G. 4, c. 57, requires that the whole year's rent should be paid, or rent to the amount of 107. only. It must be con

ceded that in Rex v. Ramsgate it was decided by this Court that since the 6 G. 4, no settlement could be gained by settling upon a tenement, unless the entire rent reserved for the term of one whole year (whatever be its amount) be actually paid. Such a construction of the statute, however, makes the words " for the term of one year at least" wholly inoperative; and this inconvenience will arise from it, that in every case it will be a question of fact whether the whole rent was paid. That case was not decided by the whole Court. The object of the statute was to give a party a settlement who occupied property of the annual value of 107. and paid rent to that

amount.

Fynes Clinton, contra, was stopped by the Court.

Lord TENTERDEN, C. J. I entirely concur in the judgment delivered by the Court in Rex v. Ramsgate, and in the reasons upon which that judgment was founded. That case is expressly in point, and must govern our decision in the present. No settlement was gained in Ashley Hay, because one year's rent was not paid, and the order of sessions must, therefore, be quashed.

Order of sessions quashed.

The KING v. The Inhabitants of BIRMINGHAM.-p. 29.

Where a marriage was solemnized by license between a man and woman, the former being a minor, whose father was living, and who did not consent to the marriage: Held, that it was nevertheless valid, the 4 G. 4, c. 75, s. 16, which requires such consent, being directory only.

Where the marriage of a female pauper is brought about by the fraud of parish offi cers, that does not prevent her from acquiring a settlement by the marriage in the husband's parish.

UPON an appeal against the order of two justices for the city and county of the city of Coventry, whereby Luke Smith and Elizabeth Smith his wife were removed from the united parishes of Saint Michael and the Holy Trinity, in the city and county of the city of Coventry, to the parish of Birmingham, in the county of Warwick, the court of quarter sessions confirmed the order, subject as to so much of the order as respects the settlement of Elizabeth Smith, therein described as the wife of Luke Smith, to the following case:

The pauper, Luke Smith, was married to Elizabeth Smith, then Elizabeth Bratt, in the year 1826, by license, he then being a minor under the age of twenty-one years, and having his father then living, who did not consent to his said marriage. It was objected by the appellants that his marriage was void under the new marriage-act, stat. 4 G. 4, c. 76, for want of the father's consent the objection was overruled by the court. The appellants then offered evidence to prove that at the time of said marriage Elizabeth Smith, then Elizabeth Bratt, was settled in and chargeable to the parish of Little Packington, and that the marriage was effected and brought about by a fraudulent contrivance and conspiracy of the overseers of the parish of Little Packington, for the purpose of changing the settlement of Elizabeth Smith, then Elizabeth Bratt, from the parish of Little Packington to the parish of Birmingham, in which Luke Smith was then settled. The court of quarter sessions refused to admit the evidence, and confirmed the order of removal, subject to the opinion of the Court of King's Bench, first, upon the validity of this marriage within the provisions of the statute 4 G. 4, c. 76; secondly upon the propriety of the rejection of the abovementioned evidence.

Amos and Hill in support of the order of sessions. This question depends upon the last marriage-act, 4 G. 4, c. 76, and that does not make the consent of parents requisite to the validity of a marriage by license, although the parties may not be of age. By the 26 G. 2, c. 33, s. 11, such consent was made essential to the validity of the marriage; but that section was specially repealed by the 3 G. 4, c. 75, s. 1, which recites that great evils and injustice had arisen from the provision. In the eighth and subsequent sections of the latter statute certain new provisions are made respecting the solemnization of marriages. Those new provisions were repealed by the 4 G. 4, c. 17, and the regulations contained in the 26 G. 2, c. 33, re-established. But so much of the 26 G. 2, c. 33, as was then in force, and the 4 G. 4, c. 17, were finally repealed by the 4 G. 4, c. 76, s. 1; so that the present question turns entirely upon the provisions of the latter statute, and the former enactments may be altogether laid out of consideration. By the sixteenth section it was enacted, "That the father, if living, of any party under twenty-one years of age (such party not being a widower or widow), or if the father shall be dead, the guardian or guardians, &c., shall have authority to give consent to the marriage of such party; and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorized to give such consent." It will be argued, that as the law requires the consent of the father, if it be not given, the marriage is void. But throughout the marriage-act there is a great difference between an objection that avoids a marriage and one which makes it the duty of the clergyman not to proceed with the marriage if it be known to him. In section 22, certain cases are specified in which the marriage shall be null and void to all intents; but the case of a marriage without consent of parents, &c. is not mentioned. Again, in section 23, it is enacted, "that if any valid marriage, solemnized by license, shall after, &c. be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under the age of twenty-one years, contrary to the provisions of this act, by means of such party falsely swearing to any matter to which such party is herein before required personally to swear, &c. such party shall forfeit all property accruing from the marriage." And the statute then goes on to provide, that it shall be secured under the direction of the Court of Chancery or Exchequer, for the benefit of the innocent party or the issue of the marriage. The legislature, therefore, clearly contemplated that valid marriages might be celebrated without proper consent; and this is also manifest from the provision made for the issue. If the marriage were void, the issue would be illegitimate, and it is not probable that the act would have continued a provision in their favour. As to the second point, it is clear that the justices did right in rejecting the evidence of fraud; for although a marriage be brought about by means of the fraudulent practices of overseers, it is not on that account void; Rex v. Watson, 1 Wils. 41; Rex v. Tarant, 1 Bott, 338.

Goulburn and Waddington, contra. Mr. Nolan in his treatise lays it down as a general rule that no settlement can be legal which is brought about by practice or compulsion, vol. i, p. 290. [Lord Tenterden, C. J. Does the rule go further than this, that the Court will prevent a fraud from having its effect when that can be done without violating some higher and more important rule? Bayley, J. Mr. Nolan treats the case of marriage as an exception from the general rule before mentioned, p. 290, n. 2, and 292, n. 7.] Then as to the first and principal question, by the 26 G. 2, c. 33, s. 11, it was expressly enacted, that the marriage of a minor, solemnized by license, obtained without the requisite consent of parent or guardian, should C

VOL. XV.-4

be null and void. Those words are not found in the sixteenth section of the 4 G. 4, c. 76; but the omission of them is not sufficient to make the marriage valid, if there are other words used which show a contrary intention in the legislature. Now section 14, points out the duty of the surrogate on granting the license: he is not to make inquiry, but merely to take the oath of the party as to the consent of parents, &c., and other matters there specified. Then section 16, specifies who shall have authority to give consent to the marriage of minors, and then proceeds: "And such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorized to give such consent." That cannot be directory to the person granting the license, for his duty is pointed out by the fourteenth section. It must, therefore, apply to the parties themselves; and it would be very absurd if the legislature required of them to procure the consent, and yet made the marriage good without it, for that would leave it entirely in the option of the party to obey the statute or violate it. Unless, therefore, the want of consent vitiates the marriage, section 16, is altogether nugatory. Then, as to the expression "if any valid marriage," &c., in section 23, relied on by the other side, it shows that some marriages solemnized by license without complying with the provisions of the act might be invalid, others valid; and this is explained by section 26, which says, that where a marriage has been by license, it shall not be necessary to prove previous residence in the parish, and that evidence to the contrary shall not be admitted in any suit touching the validity of the marriage. The legislature, therefore, must have thought that but for such proof or such saving provision, a marriage solemnized by license would be void; the protection, however, is not extended to the case of a marriage without consent of parents, &c., and therefore the truth of that fact remains material, although the truth or falsehood of the assertion as to residence is rendered immaterial. Cur. adv. vult.

On the following morning the judgment of the Court was delivered by Lord TENTERDEN, C. J. We have considered the various statutes referred to by counsel, and are all of opinion that the marriage in question is valid. A marriage under such circumstances would by the 26 G. 2. c. 33, s. 11, have been void, but the 3 G. 4, c. 75, s. 1, recites that section, and that it had been productive of great evils and injustice, and then proceeds to enact," that so much of the said statute as is hereinbefore recited, as far as the same relates to any marriage to be hereafter solemnized, shall be and the same is hereby repealed." The second section enacted, that marriages theretofore solemnized by license, without such consent as required by the former act, should be valid, with certain limitations imposed by the third and four following sections. Then the eighth and subsequent sections contained new provisions as to granting licenses in future. These were repealed by the 4 G. 4, c. 17, which restored certain parts of the 26 G. 2, c. 33, and some question might be raised as to whether that part of the 3 G. 4, c. 76, remained in force which repealed the 11th section of the 26 G. 2. But that question is now rendered immaterial by the 4 G. 4, c. 75, which repealed the 4 G. 4, c. 17, and so much of the 26 G. 2, c. 33, as was then in force. The only statute, therefore, now to be considered is the 4 G. 4, c. 75, the fourteenth section of which points out the mode in which licenses are to be obtained, and the matters to be sworn to by the parties or one of them; and one of those matters, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, is, that the consent of the person or persons whose consent to such marriage is required, under the provisions of this act, has been obtained thereto.