then attempted to establish a settlement of the pauper, through her late husband, by reason of his renting a tenement (as stated in their notice) in the parish of Bampton, and tendered in evidence an instrument signed by the pauper's husband and one Robert Elsworthey, of which the following is a copy:" Memorandum of agreement made the 24th of March 1830, between Robert Elsworthey, of Bampton, in the county of Devon, of the first part, and John Thorn, of Chipstable, in the county of Somerset, of the other part, witnesseth that the said Robert Elsworthey doth let unto the said John Thorn, a dairy consisting of ten cows and ten living calves, to be all in pail by the 1st of May, or 3s. 6d. per week to be allowed for the deficiency of each or either of the said cows after the 1st of May; and, if any or either of the said cows should fail, by loss of milk or misfortune, after seven days notice has been given, to be exchanged for another, or satisfaction made for such loss; also the kitchen, back kitchen, dairy, two bedrooms, (except as hereinafter excepted,) also sufficient linhays, pigsties, and other appurtenances which have been usually let with the said dairy, together with the north part of the garden, and 120 perches properly manured and cultivated for potatoes, and 25 faggots of wood, to be delivered in court for each cow, with liberty of cutting browse at the said Robert Elsworthey's appointment; to be found a horse one day in a week when barrelling of butter, and one day a fortnight when not barrelling. The pigs to run in the east part of the orchard until the apples are deemed necessary to be saved, and then in the garney until the apples are taken in, and to be kept well ringed to prevent their doing damage; and also to have certain plots of ground, called Great South Moor, Cross Park Garney, Middle Castle, and West Castle, and the first fortnight's keep in the South Castle; also the pasture of the home meadow, after the hay is carried off, until the 1st of November 1830; the pasture of the west meadow, until the 20th of November, and the pasture of the lower meadow, until the 25th of December 1830, the said lower meadow to be unstocked when very wet; and to help mow and make the hay in the said meadow, free of expense,

(except being found meat and drink,) the hay to be put in one rick and divided into three parts, two of the three parts to be for the use of the said cows, one of which two parts to remain unconsumed at Lady Day 1831; and to keep the windows properly glazed, and so to leave the same at the end of the term, except what glass the said Robert Elsworthey or family breaks; in consideration of the said John Thorn, his executors, administrators, or assigns, paying unto the said Robert Elsworthey, the sum of 751., the first quarter's rent to be paid on or before the 24th of June, the second payment at Michaelmas, the third at Christmas, and the fourth at Lady-day 1831, being the end of the term." The agreement contained a number of other stipulations not at all material to the case. It was stamped with a 17. 10s. stamp, and the pauper's husband occupied under it the premises referred to therein, for above a year, and paid to the amount of 75l., reserved by it. The respondents objected, first, that the stamp was insufficient; secondly, that the instrument purported to be a demise of incorporeal hereditaments, and should therefore have been under seal. The questions submitted to this Court were, first, whether looking at the terms of the notice of appeal, the Court of Quarter Sessions were right in requiring the respondents to prove a settlement in the appellant parish, and whether the appellants were entitled to cross-examine witnesses called for such purpose. If the Court should be of opinion that the Sessions were right in that respect, the order of removal to be quashed. If the Sessions were wrong in that respect, the order of removal to be confirmed, unless the Court should be of opinion that the settlement in Bampton was proved, in reference to the two following questions, and in that case the order of removal to be quashed: (that is to say,) secondly, whether the instrument before mentioned was properly stamped, so as to be admissible in evidence; thirdly, whether a settlement was gained by occupying under the instrument the premises mentioned in it, and by paying the 751. per annum, reserved by it.

When the case came on for argument in last term, it was suggested, that, as it was clear some lands were let by the agree

ment, and they were probably worth at least 10l. a year, and the rent would issue out of them, the whole rent might be apportioned between the lands which were let and the other subjects of the agree ment, upon the principle laid down in The King v. Pickering (1), where a tenement extended into two parishes, and it was held that evidence of the value of the tenement situate in each, was admissible to shew how much of the rent was paid in respect of the land situate in the appellant parish (2).

The Court assented to this suggestion; and the case was sent back to the Sessions, who found that of the 757., 131. was paid in respect of the land; and now

Praed and Bere, in support of the order of Sessions, contended, that the settlement in Bampton was now established. All the requisites of the statute 1 Will. 4. c. 18. have been complied with. But it is contended, that this instrument professes to convey an incorporeal hereditament, and therefore it is void. In the first place, however, it does not convey an incorporeal hereditament; the agreement is indeed a letting of the dairy, but, as it is described therein, it is only a personal contract for the letting of the cows. It is urged, that there is a grant of a liberty of cutting browse, but that is to be at the appointment of the lessor; and there is nothing to confine it to any particular land; therefore the case of Smith v. Surman (3) is in point, which shews that a sale of growing timber, to be cut down by the vendor, is a contract for the sale of goods and chattels. Then

(1) 2 B. & Ad. 267; s. c. 9 Law J. Rep. M.C. 106.

(2) In the case of The King v. Deeping Gate, decided in Michaelmas term, 1837, the question was, whether a settlement had been gained under 6 Geo. 4. c. 57, and 1 Will. 4. c. 18, by renting and occupying a tenement, consisting of a house, granary, and stable. The case sent from the Sessions stated, that the party whose settlement was disputed, had taken the whole at an entire rent of 30l., had occupied the house for several years, during which time be had paid the whole rent, but had underlet the stable and granary, at a rent of 10 guineas a year. Court suggested, that it was essential for the Sessions to find, that the residue was paid in respect of the house, and, upon that being conceded as a fact, decided that no settlement was acquired, as the entire tenement had not been actually occupied.

The

(3) 9 B. & C. 561; s. c. 7 Law J. Rep. K.B. 296.

it will be contended that the grant of the fortnight's keep in the South Castle, and the pasture of the meadows, are incorporeal rights; but they are clearly the same thing, and constitute a grant of the land itself. Assuming, however, that an incorporeal right was granted by this instrument, still it is not wholly void. The cases of Gardiner v. Williamson (4) and Bird v. Higginson (5) do not affect this case, where there has been an actual occupation, and the rent has been paid, which indeed issued out of the land, let with this incorporeal right-Farewell v. Dickenson (6). Then whether this be considered as an agreement or an actual lease at the rent of 751., the stamp was sufficient. In Clayton v. Burtenshaw (7) there was a deed.

Tyrrell, contrà.-The renting of this dairy would, under the statute of Charles 2, have conferred a settlement; and therefore in the cases previously decided upon such tenements, no question was made as to the demise, whether it was by parol or by deed. But since the statutes of the 59 Geo. 3. c. 50, and the 6 Geo. 4. c. 57, such subjects will not confer a settlement, and it is now necessary to see whether the demise of the land, which is relied on, has been legally made. Here the instrument in question conveys an incorporeal hereditament, and not being under seal is altogether void— Bird v. Higginson. It was there suggested, that use and occupation might be maintainable; but that is not the point here, because it is necessary to shew that the pauper's husband occupied the tenement at a certain rent. One part of the premises cannot be severed from the other. This was, in truth, a letting of a dairy, an incorporeal hereditament, within the cases of The King v. Tolpuddle (8), The King v. Piddletrenthide (9), and The King v. Hollington (10), and is not the mere letting of the cows. The pasture also is conveyed, which is an ambiguous word. Pastura, indeed, may mean the land itself, but pas

(4) 2 B. & Ad. 336; s. c. 9 Law J. Rep. K.B.

233.

(5) 2 Ad. & El. 696; s. c. 4 Law J. Rep. (N.s.) K.B. 124.

(6) 6 B. & C. 251; s. c. 5 Law J. Rep. K. B. 154. (7) 5 B. & C. 41.

(8) 14 Term Rep. 675.

(9) 3 Term Rep. 775. (10) 3 East, 113.

cuum signifies the right of feeding cattle. The former may pass without deed, but not so the latter-Co. Litt. 4, b; 14 Vin. Abr. Grants,' E, a; 2 Roll. Abr. 63. Here it is clearly a right of feeding which is granted, and the grant, not being under seal, conveyed no interest-Hewlins v. Shippam (11). Again, there is a right of cutting browse, which must be either an easement or an estover, and is in either case only an incorporeal right. In regard to the stamp, if it is to be considered that there were two reservations of rent, one for the land and the other for the incorporeal right, according to Coster v. Cowling (12), there ought to have been two stamps.

LORD DENMAN, C.J.-We are not called upon to consider what the real contract between the parties themselves may be, nor the legal consequences which may arise out of it: but we find that there was a demise of land at a rent of 13. a year, and a holding of the land under that demise. I cannot say that that holding is void, whatever may be the effect of the instrument under which it was held. Then is the stamp good? It is so, if this be a lease at a yearly rent under 100l., of which there is no doubt. There is no reason for saying that there has not been a renting of a tenement at the rent of 10l. a year.

LITTLEDALE, J.-I am of the same opinion. The case may be illustrated by this case. Suppose a lease be granted of freehold and copyhold lands, but without any licence being obtained from the lord of the manor, it would be void as to the latter, still it would be valid for the former. here, there is a good demise of the lands, though not of the incorporeal heredita

ments.

So

WILLIAMS, J.-There was here a demise of a certain portion of lands, so that if there be any difference in the former law and the present, here, at least, lands are demised nominatim.

COLERIDGE, J.-The principle laid down in The King v. Pickering has not been denied, but it has been contended that that case is not applicable, because it is said to have been assumed, in Bird v. Higginson

(11) 5 B. & C. 121 ; s. c. 4 Law J. Rep, K.B. 241. (12) 7 Bing. 456.

and Gardiner v. Williamson, that the lease being void in part, is void altogether. There is, however, no authority for that position. I do not understand those cases to have so laid it down. It certainly does not follow, that because the instrument will not operate to convey one subject-matter, it shall be invalid for another. But whatever might be our judgment, if we were considering an executory contract, the point does not arise here, because the occupation has been had. The question is, whether the pauper's husband has not held land under a demise of that land; and applying the case of The King v. Pickering, I think he has. There was certainly an attempt to pass an incorporeal hereditament. Mr. Bere passed over the right of cutting browse without much notice; but Smith v. Surman does not make out this to have been a contract relating to goods and chattels; that was a sale of the timber when it should be cut; and although this browse is to be cut at the appointment of the lessor, we cannot understand that he could have appointed it to be cut off his land. Here, then, was an attempt to pass an incorporeal interest in land, which failed, but that is immaterial. As to the stamp, the instrument was either an agreement or a lease, and in either way it is right.

Justice's Order-Bastardy.

Two Justices made an order of affiliation, directing the putative father to pay a weekly sum, and they also signed by mistake another order, directing the mother to pay that sum. Which was signed first did not appear. They were delivered to the parish officers, who kept the former, and served the latter on the father, who was told at the time, that he was to pay the weekly sum. He subsequently refused to pay the arrears, on the ground of the incorrectness of the order served on him, when the parish officers served a copy of the correct order upon him. Refusing still to pay the arrears, -Held, that a Justice of the Peace was justified in committing him to prison, under the 18 Eliz. c. 3.

Special verdict in an action for assault and false imprisonment, stated, that on the 5th of November 1829, the plaintiff appeared before Sir R. J. Buxton and J. Wright, Esqs., two Justices of the county of Norfolk, to answer a charge of affiliation, and not making any sufficient defence, they wrote, signed, and sealed two paper writings, which were set out; one was an order which, reciting that he was the putative father of a bastard child, born on the body of Sarah Aldis, ordered the plaintiff to pay to the churchwardens of New Buckingham 15s. for the expenses of the lying-in; 1. 6s. 6d. for the order, and 1s. 6d. per week for the maintenance of the said bastard, and that the said S. A. should pay 1s. per week for the maintenance, so long as she ceased to nurse the child. The other was an order which ordered the plaintiff to pay the lying-in expenses, and the costs of the order, and then directed that Sarah Aldis should pay 1s. 6d. weekly, for the maintenance of the bastard, and Is. per week as long as she should cease to nurse the child. It was found, that the name of Sarah Aldis was inserted in the last order by mistake for that of the plaintiff; that the one was intended to be an exact copy of the other, and that the Justices told the plaintiff that he was to pay 1s. 6d. per week. The Justices immediately delivered both orders to the churchwardens and overseers of New Buckingham, with directions to deliver one of them to the plaintiff, and to keep the other in the parish chest, and indorse the service on the latter, according to the usual practice of the Justices of that hundred. The parish officers kept the first order, and delivered the other to the plaintiff, who paid the 15s. and 17. 6s. 6d. at once. The first order was intended by the Justices to be the original order, and the other the copy. The mother was present when both orders were signed. It did not appear which was first signed and sealed, nor whether they were signed and sealed before or after the plaintiff was told he was to pay 1s. 6d. per week. He was afterwards applied to by the parish officers, to pay arrears due under the order, but refused to do so, on the ground, that the order was incorrect; they produced the order in their possession, and afterwards served him with

a copy thereof. In March 1834, an information was laid before the defendant, a Justice of the Peace for the same county, that the plaintiff had refused to pay the arrears due on the above order, and he was summoned before the defendant, when he alleged, that the only ground for his disobedience of the said order, was the supposed defect in it above pointed out. The defendant adjudged, that he was guilty of a refusal to pay the arrears, and committed the plaintiff to prison for three months, unless he should previously pay them. The plaintiff was accordingly imprisoned for six days, until he paid the money.

Kelly, for the plaintiff, contended, that there being two inconsistent orders, either of which would have been good, both were invalid. If it had been found that one was made before the other, that would have been the original, and would have been valid, but the Justices would then have been functi officio.

[COLERIDGE, J.-Have you any authority for saying, that the Justice can make only one order? Suppose an order be made on a father to pay 1s. a week, and afterwards he acquires property, may not another order be made increasing that sum?]

It is apprehended that the 18 Eliz. c. 3. does not give any such power. If it be said, that both orders are good, it is clear that the Justices will have done what they did not intend, because they have made the mother pay 1s. 6d. per week absolutely, as well as twice 1s. a week during the time she does not nurse the child. The judgment of Bayley, B., in Wilkins v. Wright (1), in the Exchequer, does not determine this case, because it was, in fact, extrajudicial, and the plaintiff there recovered for a defect in the warrant of commitment; besides, it proceeded on a different state of facts from those now set forth. It was there assumed, that one of the orders which was delivered to the parish officers, was the original; but it turns out that that was not the case both are executed in such a manner as that one may fairly be considered as a duplicate of the other; and there being a variance between them, both are void, as in the case of a contract, when the

(1) 2 Cr. & M. 191; s. c 3 Law J. Rep. (N.S.) M.C. 39.

notes of the broker differ-Grant v. Fletcher (2). If the orders be both void, the intention of the Justices is immaterial.

B. Andrews, contrà, relied on the judgment of Bayley, B., in the Exchequer. There is a valid order made upon the plaintiff, who was the putative father, to pay this money, and it was delivered to the proper officers. He cannot set up the order which was erroneously made upon the mother. That may be valid, or it may not, but it has nothing to do with him. The one order which the parish sought to enforce, is good on the face of it. Indeed, there is nothing which renders both orders necessarily bad. It may be considered, however, that one is an original, and the other is an incorrect copy; the original will still be valid, and that is what is delivered to the parish officers. But, secondly, the defendant was acting judicially in this case, and within his jurisdiction; he is, therefore, not liable to an action—Mills v. Collett (3).

Kelly replied. It may be conceded, that the Justices may make two simultaneous orders, yet they have not done so here, nor have they intended to do so. It is one order, yet the effect of it is to call upon the plaintiff to pay two several sums of money.

LORD DENMAN, C.J.-I quite agree in what is said by Mr. Kelly, that the person who imprisons one of the King's subjects must shew a lawful authority for such imprisonment. But, I think that the defendant does shew it in the present case. The plaintiff is the reputed father of an illegitimate child, and an order is made upon him to pay for its maintenance, and he is told what he is to pay. At the same time, however, he is served with another paper, which states, that the mother is to pay one of the sums which he had been required to pay. The parish officers keep the order which had been made upon him, and apply to him to pay the arrears, which he refused to do. They summon him before the Magistrate, and he produces the order which had been served upon him (4). That was a good reason to adduce why he should

(2) 5 B. & C. 436.

(3) 6 Bing. 85; s. c. 2 Law J. Rep. M.C. 97. (4) This fact did not appear in the special verdict..

not then pay the money; and, accordingly, on that occasion, no warrant was granted against him. A notice of the order to pay the 1s. 6d. per week, was afterwards served upon him, and he is called upon to pay it; he says, he will not comply with it, because another order had been served upon him. The Magistrate was not bound to enter into that inquiry at all; but finding a good order, he was to enforce it. But if he did make the inquiry, he would find that there was a mistake, which led to the variance between the orders.

LITTLEDALE, J.-I have had great doubt on this case, and I cannot say, on the fullest consideration, that it is altogether removed. But I do not consider that there are two orders here. It appears, that the Justices made an adjudication, and, in consequence thereof, ordered the father to pay three several sums. They signed two papers; by one, they ordered the father, and, by the other, they ordered the mother to pay one of these sums. Taking it in the strongest point of view, that the latter was signed first, it does not appear to me that they were then functi officio, but they might have proceeded to make another order. It so happened, that the two papers here differed, the one told the plaintiff that he was to pay Is. 6d. per week, the other, that the mother was to pay that sum. The Justices might have made two orders differing from each other, or if it had appeared that there was a mistake, they might have corrected it, so long at least as the parties were present: after they had gone away, indeed, it might have been different. Here, however, the Justices determined which was the right order, by giving it to the parish officers.

WILLIAMS, J.-I agree in the view taken by the rest of the Court, that this is a good defence. There is nothing to shew, that there were two orders, if the facts be looked at. From them it appears conclusively, that the party when summoned had due notice what was intended to be the order of the Justices, for they informed him of what he was to pay. The Court of Exchequer have decided this point, holding that, of the two papers, that was the valid order which was given to the parish officers. Then, on the ground stated by my Lord, an order was produced to the Justice, good