1860. Thursday, Thursday, 146 CASES ARGUED AND DETERMINED IN TRINITY VACATION, XXIII. & XXIV. VICTORIA. The Judges of the Court of Queen's Bench who sat in (Error from the Queen's Bench.) The QUEEN, on the prosecution of HANS RING- [Reported, 1 E. § E. 1088.] IN THE EXCHEQUER CHAMBER. (Error from the Queen's Bench.) PERRINS against The MARINE AND GENERAL [Reported, 2 E. & E. 324.] 1860. IN THE EXCHEQUER CHAMBER. (Error from the Queen's Bench.) JOHN CLARK against The QUEEN. ERROR by the defendant to reverse the judgment against him on an information in the nature of a writ of quo warranto. The venue in the margin of the information was South Lancashire; and the information called upon the defendant to shew by what authority he claimed to exercise the office of councillor of one of the wards of the borough of Liverpool. The defendant traversed that he exercised the office of councillor, or claimed to be councillor. Issue was joined thereon. Then followed on the record a suggestion by the Court of Queen's Bench that the trial of the above issue could be more conveniently had in the county of Middlesex, and therefore, according to the statute in such case made and provided, that a jury of the said county of Middlesex &c. The record, further, shewed that the case was tried in Middlesex by a jury of that county, who found the defendant guilty, and judgment of ouster was accordingly entered. Error was assigned, on the ground that the case was tried before a Middlesex jury, and not before a jury of the county or place where the venue was laid; and that no law warranted the trial of the issue by such a jury, on the suggestion that the trial could be more conveniently had in Middlesex than in Lancashire. Thursday, June 14th. The Court has power to change the venue in an information in the nature of a quo war ranto: and a suggestion on the record, that the trial of the issue conveniently can be more had in the county of the venue, shews sufficient ground for the substituted change, and for the subse quent proceedings in that county. 1860. CLARK Brett, for the defendant (a). There has been a mistrial. The venue was local, and the Court below had The QUEEN. no power to change it to Middlesex on the mere suggestion that the trial could be more conveniently had there; though possibly, had the suggestion been that a fair trial could not be bad in South Lancashire, the venue might have been changed. A proceeding by quo warranto is not an "action" within the purview of stat. 3 & 4 W. 4. c. 42. s. 22., which empowers the Court to change the venue in local actions: and stat. 6 & 7 Vict. c. 89., under sect. 5 of which the Court may order the venue in proceedings by way of quo warranto to be laid in Middlesex in the first instance, contains no provision for the change to that county of a venue originally laid elsewhere. The case therefore falls within the old statute of quo warranto, 18 Edw. 1, stat. 2., by sect. 2 of which the venue must be local and the case tried in its own shire. [Williams J. The old writ of quo warranto is now obsolete.] Although that is so, it is laid down in Corner's Crown Practice, p. 179, that the same incidents apply to the substituted proceeding by information in the nature of a quo warranto. Milward, contrà, was not called upon. WILLIAMS J. We think that the Court of Queen's Bench had power to change the venue, and that there has been no mis-trial. WILLES and BYLES Js. and MARTIN and CHANNELL Bs. concurred. Judgment affirmed. (a) Before Williams, Willes and Byles Js.; Martin and Channell Bs. 1860. Tuesday, April 24th. Friday, HODGSON and others against HOOPER and others. Thursday, June 14th. EJECTMENT brought, by writ dated 16th February, On 21st Au gust, 1781, 1859, by the plaintiffs, the churchwardens and the lord of a manor, with the consent of certain of the tenants, granted to five persons, two of whom were the churchwardens and overseers of the parish of M., license to enclose 3 a. 2 r. of the waste of the manor; and that they and their heirs, and all persons claiming under them, should and might lawfully hold the same, so enclosed, in trust for the purpose of building a workhouse for the poor of M.; rendering to the then lord and to all other lords of the manor the yearly rent of 5s. for the same in every year for ever. This grant was not according to any custom in the manor, nor was there any such custom. The churchwardens and overseers of M. immediately took possession of the land the subject of the grant, and built on it a workhouse which, up to Midsummer, 1838, was used as such; and possession of the workhouse and land was retained by the churchwardens and overseers, or persons claiming through them, from 1781 to 1840, when they were surrendered to the then lord of the manor, as hereafter mentioned. In 1817, the churchwardens and overseers of M. also took possession of 2 r. 10 p. of land, contiguous to that granted in 1781; and retained possession of this additional land also from 1817 to 1840. The five persons nominated as trustees of the original land by the grant of 1781 all died before 1817, and no heir of the survivor came in to claim admittance to it, after due proclamations in the manor Court calling upon him to do so. In October, 1835, the then steward of the manor gave notice to the churchwardens of M. to nominate other trustees in the stead of those deceased, in order to their admittance at the next manor Court, to save a forfeiture. In compliance, the vestry of the parish nominated seven fresh trustees, who, on 27th October, 1835, were admitted to both pieces of land at a manor Court; the parish paying a fine to the lord and the lord granting the land to the seven persons and their heirs, to hold by copy of court roll and at the will of the lord, on the same trusts as in the grant of 1781, and at the same yearly rent of 5s. From the accounts of a deceased steward of the manor, it appeared that this rent was paid to the lord from 1781 to 1791, and from the parish books of M. it appeared that it was also paid from 1825 to 1836. In January, 1840, the vestry of M. passed a resolution that, there being no further use for the premises as a workhouse, the land should be forthwith surrendered to the then lord of the manor by the churchwardens and overseers, and the trustees appointed in 1835. And in February, 1840, that surrender was made to the then lord of the manor, the surrender comprising, in terms, the first piece of land only, but possession being given to the lord, not of it only, but also of the other. The lord, by himself or by persons claiming under him, held undisturbed possession of both pieces of land from February, 1840, to the time of the present action. On a case stated, in an action of ejectment brought, on 16th February, 1859, by the churchwardens and overseers of M., to recover both pieces of land from defendants, who were in possession and claimed under the lord of the manor of 1840, power being reserved to the Court to draw inferences of fact: Held, that plaintiffs were not entitled to recover either piece of land. As to the original piece, that the possession by plaintiffs under the grant of 1781 was at the outset permissive, and had not, down to and at the time of the passing of stat. 3 & 4 W. 4. c. 27. (July, 1833), become adverse; plaintiffs having, from 1781 down to that time, held either as tenants at will or, at most, as tenants from year to year of the lord. That such tenancy was determined by the admittance of the fresh trustees for M. in October, 1835, whereby, within five years from the passing of stat. 3 & 4 W. 4. c. 27., a fresh tenancy at will was created: which last tenancy was, within twenty-one years of its inception, namely, in 1840, determined by the lord's entry and 1860. HODGSON V. HOOPER. possession. overseers of the parish of Mitcham, for the recovery from the defendants of a piece of land containing four acres and ten perches, or thereabouts, situate in that parish, on the north side of Mitcham Common; togeresumption of ther with the messuage or tenement and the out-offices and buildings thereon, lately erected as a workhouse for the poor of the said parish of Mitcham, and for a garden or orchard for the further accommodation of the said poor, and such other buildings as are now standing thereon, and which premises are now used as an indiarubber manufactory, with the appurtenances. As to the piece of land taken possession of by plaintiffs in 1817: That the lord's right of entry to it could not be barred before 1837, before which, namely, in 1835, it was included in the land to which the The following case was afterwards stated by consent. 1. There are either appendant to, or forming part of, or included in, the manor of Biggin and Tamworth, in the county of Surrey, large commons, or commonable were admitted; waste lands, of which the premises sought to be recovered formed part prior to 1781. fresh trustees as it was, in 1840, in the land of which the lord retook possession. 2. On 21st August, 1781, the lady of the manor of Biggin and Tamworth, by the consent in writing of eighteen persons, tenants of the manor, granted unto Foster Reynolds, John Swain, John Chesterman, Joseph Sibley and James Galpin, license to inclose a piece of land, parcel of the common or waste belonging to the said manor, called Mitcham Common, containing three acres and two roods (being part of the land sought to be recovered), as the same were then staked out; and that they and their heirs, and all persons claiming under them, should and might lawfully hold the same, so inclosed, in trust for the purpose of erecting and building a workhouse for the poor of the said parish of Mitcham, and for a garden and orchard for the further accommodation and benefit of the said poor; rendering to the lady of the said manor, and all other lords or ladies, |