The KING v. The Justices of NORFOLK. Nov. 19.

By the statute 17 G. 2, c. 38, it is discretionary in magistrates to commit an outgoing churchwarden or overseer who neglects or refuses to account.

THE appeal against the accounts of the overseers of the poor of the parish oi Brancaster, having been heard at the January sessions, 1831, was dismissed, 2 B. &. Ad. 944. An information was afterwards laid against L. Sims, who had been one of the churchwardens, for not having rendered an account pursuant to the 17 G. 2, c. 38. A summons having been granted against him, he appeared by attorney, and it was proved that he was eighty years of age, very infirm, and although he had been elected churchwarden, he had never been sworn in, and that, although he signed the poor rates, he had never interfered in their collection or received any of the parish moneys. The justices, under these circumstances, having refused to commit him, a rule was obtained calling [*239 upon the justices and Sims to shew cause why a mandamus should not be directed to the justices to issue their warrant of commitment pursuant to the

statute.

F. Pollock and Kelly now shewed cause. The commitment to gaol, uuthorized by this statute, is a judicial act. Section 1 requires the outgoing churchwardens and overseers, yearly, to "deliver to the succeeding overseers a just, true, and perfect account in writing of all sums of money by them received, or rated and assessed and not received, and also of all moneys paid by such churchwardens and overseers so accounting, and of all other things concerning their said office." Here, Sims had no account to render; but assuming that he was bound to account, section 2 is not imperative on the magistrates to commit, but gives them a discretionary power to do so or not; the words of that section being, that in case such churchwardens and overseers shall refuse or neglect to account, "it shall and may be lawful' for the justices to commit.

Palmer contrà. Sims acted as overseer by signing the rate; and, by the statute, he is bound to deliver in an account, not only of all sums of money received, but of moneys rated and assessed and not received, and of all other things concerning the office.

DENMAN, C. J. The justices were satisfied that, under the circumstances of this case, there was no ground for commitment; and the statute authorizes, but does not compel, them to commit. There is no ground, *therefore, for issuing a mandamus to the magistrates; and the rule, as to them, must be discharged with costs, but, as to Sims, without costs.

[*240

PARKE, J. Sims ought to have rendered some account. The magistrates, however, having exercised their discretion and refused to commit him, I think the rule should be discharged, as to them, with costs, and without costs as to Sims. TAUNTON, J. concurred.

PATTESON, J. I am of the same opinion. Sims ought certainly to have delivered some account; because the statute requires that he shall render an account of the moneys rated and assessed and not received, and of all other things concerning his office. Rule discharged.

*RUBERY v. STEVENS and Another.

[*241

Where the residue of a term of years becomes vested in executors, and the yearly value is less than the reserved rent, the executors are still liable in the debet and detinet as assignees, for so much of the rent as the premises are worth.

The plaintiff having declared in covenant for rent at 261. a year, the defendants pleaded that they were only chargeable as executors; that the term came to them as such, that

the premises were of less yearly value than the said rent of 267., viz. of no value, and that they had fully administered, &c. Replication, that the premises were of the yearly value of 261.; issue thereon. At the trial the yearly value was found by the jury to

be 20%:

Held, that the replication was, in substance, that the premises were of some value; that the issue was merely informal, and cured by verdict; and that the plaintiff might recover the arrears of rent at the rate fixed by the jury.

COVENANT by reversioner, against the defendants as assignees of a term in certain premises demised by indenture at the yearly rent of 267: breach, nonpayment of the rent for two years. Plea, that the defendants ought not to be charged with rent otherwise than as executors, in the detinet only: they then stated that the term came to them as executors of one Peter Walker, and continued as follows:-"And the defendants further say, that the said demised premises, &c., at the time of the death of the said P. W. were, and from thence hitherto have been, and still are, of much less yearly value than the value of the said rent of 261. a year so by the said indenture reserved as aforesaid, that is to say, the same premises during all the time aforesaid were and still are of no value whatever." The plea concluded with a plene administravit. Replication, that the premises at the time of Walker's death were, and from thence hitherto have been, and still are, of the yearly value of 267.: upon which averment issue was joined. At the trial before Lord Tenterden, C. J., at the sittings in Middlesex after Hilary term 1832, his Lordship left it to the jury to say what had been the annual value of the premises during the time in tion; they found it to have been 207., and gave a verdict for the plaintiff for *242] arrears at that rate; but leave was given to the defendants to move to *enter a nonsuit, on the grounds, that the issue between the parties was, in substance, whether or not the premises were of the value stated in the declaration; that they had been proved not to be of that value; and, therefore, that the defendants were not liable to any amount, otherwise than as executors. rule nisi having been obtained,

ques

A

If

Sir James Scarlett and Cottingham shewed cause in the present term. the premises were of any value, the defendants are liable as assignees. Their defence is, in substance, that they have derived no profit whatever from the premises, and consequently are not chargeable as assignees, but as executors only; and that as executors they have fully administered all the effects that came to their hands. But it being found that the premises were of some value, they are liable to assignees to that extent: 1 Wms. Saund. 112, note (c) 5th edit.(a). It is true the plea states the premises to have been of less value than *243] 267. a year, that is to say, of no value, and the plaintiff replies to this, that they were of the yearly value of 267.; upon which averment issue has been joined. But the actual sum stated in the replication is not important; the material averment in the plea is, that the premises were of no value; and that being so, the mention of a particular amount in the replication does not render such amount an essential part of the issue. The question is, were the premises of some value or none? "When a material allegation is traversed in

(a) The result of the cases is there stated as follows:-"If an executor be sued in his representative capacity for rent accruing in his own time, either in debt or covenant, where the lease is by deed, or in debt or assumpsit for use and occupation, where the lease is not by deed, he may plead plene administravit, and under that plea may shew that the land yields no profit, and that he has no assets aliunde; but if the land yields a profit equal to the rent, he will fail on a plea of plene administravit, for he is bound to apply the profits of the land towards payment of the rent in the first instance, and his not doing so will be a devastavit; if, therefore, the land yields some profit, but less than the rent, it should seem that his plea should be plene administravit præter the profit. If, on the other hand, the executor be sued, as he may be when he enters and is in the actual occupation, in his individual capacity as assignee of the term, in debt on a lease by deed, he must plead specially that he holds only as executor, that the lands yield no profit, or less than the rent, and pray whether he shall be charged otherwise than in the detinet; in covenant, he must plead the same matters specially."

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an improper or inartificial manner, the issue taken upon it is merely an informal one, which is held to be aided after verdict by the statute 32 H. 8, c. 30." 2 Wms. Saund. 319, note (6). Cobb v. Bryan, 3 B. & P. 348.

Campbell and Joseph Addison, contrà. The gist of the plea is, that the defendants are not liable as assignees, but as executors only; and the question on which that depends is, whether or not the premises were equal in value to the rent reserved. It is laid down in the note cited from 1 Wms. Saund. 112, that if the executor be sued as assignee of the term, "he must plead specially that he holds only as executer, that the land yields no profit, or less than the rent, and pray whether he shall be charged otherwise than in the detinet." If the plaintiff meant to insist that the premises, though of less value than the rent reserved, had still yielded something, that should have been averred as an answer to the plene administravit: the misapplication of such profit, whatever it might be, would have been a devastavit by the executors. In Bolton v. Canham, Pollexf. 125, (S. C. 1 Ventr. 271), an executor sued in the debet and detinet for 2401. rent, pleaded *that the premises were of less value than the [*244 rent, to wit, of the value of 1007. only, and that he had fully administered; and the Court was of opinion, that if this had been the only matter pleaded, it might have been a good bar. Billinghurst v. Speerman, 1 Salk. 297, is to the same effect. If the premises are worth less than the rent, it is damnosa hæreditas, and, with reference to the question of liability as assignee or as executor, it is the same as if they were worth nothing. The value specified in these pleadings was therefore material; and the plaintiff, having proved a less value cannot recover. Besides, if it was competent to him to tender issue on the question whether or not the premises were of any value, he has not used words which have that effect. Cur. adv. vult. DENMAN, C. J., in the course of this term delivered the judgment of the Court.

There are two questions in this case. The first, whether the substance of this plea is, that the tenements demised were not of the value of the rent; or that they were of no value whatever.

The second, whether, if the latter be the substance of the plea, the plaintiff is entitled to judgment on this issue upon the facts found by the jury.

Upon referring to the authorities, aud considering the case, we are of opinion that the plaintiff upon these pleadings is entitled to a verdict.

It is clearly settled that the executor of a termor eannot waive the term, but that he must either renounce or accept the executorship in toto: and if he accept the executorship, and enter on the demised premises, he is chargeable as assignee in an action of debt or covenant for the arrears of [*245 rent due after his entry, de bonis propriis. But as the rent may be of greater value than the land, it would be a greater hardship on the executor in that case to charge him personally in his own right with the full amount of the rent. And it is quite clear from the authorities that he is not so chargeable. But then arises the question, whether he be personally liable, in that event, as assignee, for no part of the rent, considering it as an entire thing, for the whole of which he must be so liable or not at all; or whether the rent can be apportioned, and he is liable in the character of assignee for so much of the rent as the premises are worth. Upon reference to the authorities it seems that the rent is in this case to be apportioned, and the executor is chargeable personally for so much of the rent as the premises are worth.

In one of the earliest cases, Hargrave's case, 5 Coke, 31 b., it was adjudged that in an action against the executor for rent due in his own time, the writ should be in the debet and detinet, "for when an executor takes the profits nothing shall be assets but the profits above the rent: as, if the land be worth 102. per annum, and 57. is reserved, in that case nothing shall be assets but the 57. above the rent."

The next material case is that of Helier v. Cascbert, reported in several books.

In 1 Lev. 127, Kelyng says, "The executor cannot waive the term, but shall be charged in the detinet, on which the assets shall come in question; and if he continues the possession, he shall be charged in the debet and detinet in respect of the perception of the profits, whether he has assets or not; to which Twysden agreed."

*246]

In the same case, 1 Sid. 266, it is stated that it was resolved by all that an executor cannot waive, if he does not waive the executorship; and this although the testator took a demise of land which is worth only 107. a year, rendering 207. a year, this contract binds the executor as long as he has assets; but, per Windham, J., semble, "that if an action in this case is brought in the debet and detinet, and the executor pleads nil debet, and on the evidence it appears that. the land is worth only 107. a year, he shall have a verdict for 107. a year, and for the other 107. the lessor shall have an action on the detinet tantum, because he is solely liable in respect of the contract." The reporter adds a query. There is an argument of Pollexfen when at the bar, in his reports, p. 132, which places this question in a clear point of view. He says, "If it should be admitted that in such case where the rent is more than the value of the land, in an action in the debet and detinet the defendant shall not be charged for the whole rent, yet he ought to be charged for so much as the land is worth. This I ground upon what has been said, that if an action in the debet and detinet lie where the land is of as much value as the rent, it ought then to lic for as much of the rent as the value of the land amounts unto in the debet and detinet: then, if so, their plea is pleaded as a bar to the whole rent, whereas it is only a bar to part, viz., to the 607. over and besides the value; and as for the 1007., by his own showing, we ought to recover, for by his own showing, he is chargeable in the debet and detinet for that."

*247] *"In debt for rent, the defendant pleads an eviction of part of the land, and sets out the value: this is only a bar to a part of the rent, and if he pleads nothing to the rest, judgment must be against him for the whole." In the case of Buckley v. Pirk, I Salk. 317, Chief Justice Parker (Lord Macclesfield) says, "If the rent be of less value than the land, as the law prima facie supposes, so much of the profits as suffices to make up the rent, is appropriated to the lessor, and cannot be applied to any thing else. On the other hand, if the rent be worth more than the land, the defendant may disclose that by special pleading, and pray judgment whether he shall be charged otherwise than in the detinet only."

It

appears to us, that the dictum of Windham and the argument of Pollexfen are well founded in law: for if the profits are appropriated to the lessor, and become a personal debt due from the executor to him, where they are equal to or greater than the rent, why should they not be equally appropriated to the lessor, and equally a personal debt due from the executor where they are less? If so, it follows that the plea in this case, which is pleaded to the whole rent in the declaration, cannot be a good bar, unless it shews that there were no profits at all. If they had been less than the rent, and therefore covered a part only, that part should have been confessed, and the plea pleaded to the remainder. The substance of the plea, therefore, must be taken to be, that the demised tenements were of no value whatever.

The second question is, as to the form of the issue: and whether the plaintiff be entitled to judgment?

The jury have found the demised tenements to be worth 207. a year only. *248] *The substance of the plea being, as above mentioned, that the premises were of no value, we think that the substance of the replication is, that they were of some value, and that the issue is merely informal, and cured by verdict.

Looking on the allegations on both sides, there is an averment by the plaintiff, that the demised premises are of the yearly value of 267.; and on the part of the defendant, that they are of much less value than 267., that is to say, of no

value whatever, which is equivalent in substance to an allegation that they are not of the value of 267., or any part thereof.

We therefore think that the substance of the issue is, whether the demised tenements were worth any thing, and that issue ought, on the facts, to be found for the plaintiff. If they are of any value whatever, the plea is falsified, for it constitutes no defence to the action for the whole rent unless they are of no value. Rule discharged.

The KING v. The Inhabitants of LEEDS.

Under the statute 33 G. 3, c. 54, s. 24, (which is in substance the same as 12 Ann. st. 1, c. 18, s. 2,) an apprentice bound to a person residing in a parish under a certificate, cannot gain a settlement by such apprenticeship, though the certificate be subsequently discharged, and he afterwards continue to serve his master in the parish for forty days. The binding, to confer a settlement, must be such as would, at the time, be effectual for that purpose.

ON appeal against an order of two justices, whereby Nathaniel Bowles, his wife and children, were removed from the township of Horton, in the West Riding of Yorkshire, to the parish of Leeds, in the same Riding, the sessions confirmed the order subject to the opinion of this Court on the following case :— The pauper's father was settled in Leeds. In 1809 *the pauper, being about thirteen years [249* of was bound apprentice by his father for seven age, years to Joseph Fox, shoemaker, who was then residing in Horton, under a certificate from a Friendly Society. Four years after the indenture was made, Fox took a farm for a year in Horton at 407., which he occupied for the year. pauper continued to serve his master for seven years from the date of the indenture. The sessions, being of opinion that the pauper had not gained a settlement by such apprenticeship, confirmed the order. The case was argued in the course of this term.

The

Blackburne and Milner in support of the order of sessions. Under the statute 33 G. 3, c. 54, s. 24, (a) no settlement was gained by this apprenticeship. For that purpose, the binding ought to be to a master who is at the time capable of communicating a settlement. By 3 W. & M. c. 11, s. 8, binding and inhabitation confer the settlement: if the master is not settled at the time of the binding, his becoming so afterwards will not enure to render it valid. This is clearly to be inferred from Rex v. Hinckley, 4 T. R. 371. Lord Kenyon there, referring to 12 Ann. stat. 1, c. 18, s. 2, (which is similar to the clause in question of 33 G. 3,) says, it is necessary that the binding should be such as would confer a settlement by service under the master, "for the legislature intended that no act whatever of this sort done by a certificated man should help to bind the parish." In Rex v. Manningtree, 6 M. & S. 214, the son of a certificated person was bound apprentice, before he came of age, to a master *living out of the parish; and after coming of age, he slept more than forty nights [250* in the certificated parish, while serving under the apprenticeship. There was a sufficient inhabitation in the parish after he was emancipated, to have conferred a settlement, but the binding was before: and the Court held, on that account, that no settlement was gained. In Rex v. Great Driffield, 8 B. & C. 684, the present question was raised, but not decided. Rex v. Nacton, 3 B. & Ad. 543, decided last term, is no authority in favour of this settlement, for there the master had taken a tenement in the certificated parish at the time of the binding, and was then irremoveable.

(a) The material part of the clause is given in the judgment. The act is now repealed. See 10 G. 4, c. 56.