v. Waters, 6 East, 336, mainly turned, as is pointed out by Lord Ellenborough in Rex v. The Marquis of Stafford, 7 East, 521, 528.

Cur. adv. vult.

Lord CAMPBELL, C. J., on a later day in this Term (June 8th) delivered the opinion of the Court.

In this case we are of opinion that the plaintiff is entitled to recover. The only question is, What estate was taken, under the will of Jane Taylor, by James Kershaw, the son of James Kershaw the nephew of the testatrix? We think that he took only an estate for life. Such an estate is expressly limited to him by the words following the devise for life to the nephew, "and, from and after his decease, I give and devise all the same estates unto the first son of the body of my said nephew James Kershaw, to hold the same to such first son for and during the *term of his natural life only, without impeachment of waste."

*857] Still this estate for life might be enlarged into an estate tail, if there were any general intent expressed by the testatrix which, without doing so, could not be carried into effect. Her intent appears to have been that the sons of James the son should successively take estates tail, and that her right heirs should take only when these estates tail were exhausted. But this purpose will be carried into effect, James the son taking only an estate for life, and his eldest son taking an estate tail by purchase. Without the estate of James the son being enlarged so as to make him the stirps from whom his sons were to take by descent, the words which follow the limitation to him we consider quite sufficient to accomplish the intention of the testatrix: "and, from and after the decease of the last-mentioned first son of the said James Kershaw, I give and devise all the said estates to the first son of the body of such last-mentioned son, with remainder to the second, third, and all other sons of the body of such last-mentioned son, for ever, the elder being always preferred to the younger. And, in default of all such issue as aforesaid, then I will that all the said estates shall go and descend to my own right heirs for ever." Bearing in mind that James the son of the nephew was born when the will was made, not only does the intent of the testatrix seem manifest, but she uses apt language to carry it into effect, after giving James the son an estate for his natural life only. Without express words of inheritance in the limitation to his sons, it seems clear that, taking by purchase, they would take more than life estates, viz., estates tail successively. The several expressions, "with remainder," "for ever," and "in default of all such issue as *858] aforesaid," we think are abundantly sufficient to indicate an intention to that effect. If the ultimate limitation in fee had been to a stranger, instead of being to the right heirs of the testatrix, it would have taken effect upon the death of James the son without issue, or upon the failure of the estates tail given to his sons: but this is quite compatible with James the son taking an estate for life only.

Mr. Cowling contended that this construction of the will would defeat the intention of the testatrix by taking in females, as, if the sons of James the son take estates tail by purchase, they must be estates in tail general, whereas, he says, she manifests a desire to exclude females. from the succession. If such an intention be so clear, the estates tail taken by the sons may be construed to be estates in tail male. But we cannot discover any such manifest intention; nor do we see how it would be better carried into effect by giving an estate tail to James the son. This would be in direct violation of the language she has employed, and would entirely defeat the intention she manifests, by her will, to keep the lands devised inalienable as long as she could in the line of the Kershaws by exercising the power which she had to give an estate for life only to the son of her nephew. His disentailing deed and his will therefore operated nothing: and the plaintiff is entitled to recover as the heir at law of the testatrix.

We do not consider it necessary to comment upon the cases cited in the argument; for none of them conflict with our decision; and they only lay down the well known general rules by which we have been guided in giving judgment for the plaintiff.

Judgment for the plaintiff.

*The QUEEN v. FREDERICK DAY. June 3.

[*859

By a local statute, land was vested in trustees in fee, in trust for the benefit of the inhabitants of the parish of H., subject to by-laws which the trustees were empowered to make. The trustees were empowered to let the land; and to regulate the right of pasture, on the portion not let, to be enjoyed by the inhabitants of the parish of H., householders at the time of the passing of the Act. The right of pasture of each such householder at the time of the Act was assignable to any others being inhabitants.

At an election for coroner for a district comprehending the parish of H. and the land in question, the votes of inhabitants of the parish entitled, as assignees, to pasture over the land in question were received for the candidate who was returned.

On a quo warranto against him,

Held that the qualification for a voter for coroner is the possession of a legal freehold that these inhabitants had, at most, only an equitable interest in the land; and that their legal interest was, at most, a right to common in gross, which confers no vote. Judgment for the Crown.

T. C. FOSTER, in Michaelmas term, 1852, obtained a rule calling on Frederick Day to show cause why an information in the nature of Quo warranto should not issue against him at the relation of Edward Pope, for the office of coroner for the Hemel Hempsted district of the county of Hertford. In Easter Term, 1853, Lush showed cause, when it appeared that the facts were not in dispute.

It was agreed, on both sides, that an election for coroner was duly held in June, 1852; that Day and Pope were the candidates; that Day had a majority of votes actually received, and was declared elected, and

had acted; that the votes of James Raggett, and a number of other persons claiming by a similar qualification, were objected to on behalf of Pope, but received for Day; and that, if these votes were struck off, Pope had the majority. The Court ordered that the facts relating to Raggett's qualification should be stated in a case, which was now argued.

*860]

The case, after stating the election, and that stat. 49 G. 3, c. clxix.(a) was to be taken as part of the case, proceeded *as follows. The tract of pasture land called Box Moor, and other the hereditaments and premises in the said *Act mentioned, are freehold, *861] and situate partly in the parish of Hemel Hempsted aforesaid, and partly in the hamlet of Bovingdon, but entirely within the said district for which the said election took place. From the passing of the said Act, up to and at the time of the said election, such parts of the said pasture land as were not demised or leased according to the provisions of the said Act were, subject to the provisions of the said Act, and in pursuance of the regulations and stints in that behalf, from time to time

(a) Local and personal. "For vesting in trustees a certain tract of open pasture land called Box Moor, in the parish of Hemel Hempsted in the county of Hertford, upon certain trusts, applying the produce thereof, and for better securing the rights of the respective parties entitled to the said Moor."

Sect. 1 recited successive deeds of feoffment: the first dated 26th April, 36 Eliz., whereby certain lands now known as Box Moor, and rights of fishing in the streams flowing there through, were conveyed to feoffees in trust for the inhabitants of Hemel Hempsted and Bovingdon; and the last a deed of feoffment in trust, dated 20th April, 1787; the trusts were declared to be, in trust "for the feoffees therein before named, and all other person and persons whomsoever, by whatever name or names soever they be called or known, which then dwelt and were inhabitants of Hemel Hempsted and Bovingdon aforesaid and their respective heirs, by equal portions thereof in common, so long as they or every or each of them, or their heirs, should dwell and be inhabitants of Hemel Hempsted or Bovingdon aforesaid; and if they or any of them, or the heirs of them, should depart, remove, and not dwell there, then, in trust for such other person or persons, and their respective heirs, for such portion or portions of him or them so departing, removing, and not dwelling, there in common with the rest then inhabiting there, as should successively in their places and steads so departing and removing, there dwelling and be inhabitants of Hemel Hempsted and Bovingdon, so long as such person or persons and their heirs should so dwell and be inhabitants in their places and steads aforesaid, and so from time to time after every departing or removing to dwell in Hemel Hempsted and Bovingdon." The section then recited a deed poll of 14th September, 1799, by which the feoffees conveyed part of the land to The Grand Junction Canal Company, and some other deeds of sale, to other parties named in the Act, of other parcels; and, after further reciting that doubts had arisen as to the validity of these conveyances, and that it was desirable to empower the trustees to make by-laws, it was enacted that the premises should be vested in certain persons named as trustees, their heirs and assigns, "to the use of them, their heirs and assigns for ever, for the best use and advantage of the inhabitants of Hemel Hempsted and Bovingdon aforesaid, in manner mentioned in the said several recited indentures of release and feoffment, and upon the trusts and to and for the intents and purposes hereinafter expressed and declared of and concerning the same."

Sects. 2, 3, 4, and 5 confirmed the various sales of parts of the premises recited in sect. 1. Sect. 7 enacted that the trustees should hold the premises "in trust for, and for the best use and advantage of the inhabitants" of Hemel Hempsted and Bovingdon, subject to by-laws to be from time to time made by the trustees. Sect. 9 empowered the trustees to let any part of the moor. Sect. 12 authorized them "to regulate and stint the quantity of cattle to be turned on such parts of the moor as shall be left remaining for pasture, by each inhabitant at the time of passing this Act, being a householder of the said parish or hamlet of a whole tenement, in respect of such tenement." Sect. 13 rendered such right of pasture transferable from time to time to any other person being such inhabitant householder.

made by the trustees for the time being acting under and by virtue of the said Act, used and enjoyed for purposes of pasturage by such of the inhabitants of the parish of Hemel Hempsted and hamlet of Bovingdon aforesaid as were, for the time being, householders of the same parish and hamlet of certain whole tenements situate therein, which were either standing at the time of the passing of the said Act, or had been erected on the sites of such tenements as were so standing, and which said tenements were, before and at the time of the said election, and are now, indentifiable by iron labels or tickets fixed to them. The value of such pasturage to each of such inhabitants was, before and at the time of the said election, about 68. a year. During all the time aforesaid, the rivers Gade and Bulborn, in the said Act mentioned, and running through and covering several acres of the said moor, were, subject to and according to the provisions in that *behalf of the said Act, used and [*862 enjoyed for the purposes of fishing, and taking of fish therein, by such inhabitants, householders for the time being of the said parish and hamlet as aforesaid. Subject to such user and enjoyment of pasturage, and of fishing and taking of fish, as aforesaid, the rents, issues, and profits of the said moor, and of the wharf, and other the hereditaments and premises in the said Act mentioned, were, from the time of the passing of the said Act up to and at the time of the said election, received by the trustees for the time being, acting under and by virtue of the said Act, and have been by such trustees, annually from time to time during all that time, applied and divided, as to three fourth parts thereof to and for the use and advantage of the inhabitant householders for the time being of the said parish of Hemel Hempsted, and as to the remaining one fourth part thereof to and for the use and advantage of the inhabitant householders for the time being of the said hamlet of Bovingdon aforesaid.

Before and at the time of the said election, the said James Raggett was an inhabitant of the said parish of Hemel Hempsted, and a householder of the same parish of a whole tenement situate therein, being one of the said tenements the householders whereof so used and enjoyed the said moor for the purposes of pasturage, as aforesaid, and the said rivers for the purposes of fishing, and taking fish, as aforesaid, and was, at the time of the said election, in the actual use and enjoyment of such right of pasture and fishing respectively, and to the other benefits and advantages of the said Act. The said James Raggett had not at the time of the said election any right or title to vote at the same election, except as herein before set forth, or referred to.

The question for the opinion of the Court is: Whether the said James Raggett was entitled to vote at the said election. If [*863 the Court shall be of opinion in the affirmative thereof, then the said Edward Pope agrees that no further proceedings herein shall be taken; but, if the Court shall be of a contrary opinion, then the said Frederick

Day agrees that judgment of ouster shall be forthwith signed against him and it is hereby agreed that neither party shall seek costs against the other in either event.

T. C. Foster, for the Crown.-The qualification of a voter for coroner is, that he shall have a legal freehold. "It is to be known, that the office of a coroner ever was, and yet is eligible in full county by the freeholders, by the King's writ De corunatore eligendo: and the reason thereof was, for that both the King and the county had a great interest and benefit in the due execution of his office, and therefore the common law gave the freeholders of the county to be electors of him.” 2 Inst. 174. All the authorities agree that this was the common law. At common law knights of the shire, coroners and verderers were all to be chosen by the freeholders of the county; Dalton on Sheriffs, 443, c. 114. The same law, as to coroners, is laid down in 3 Hawk. Pleas of the Crown, 103 (B. II. c. 9, s. 10), and 1 Bl. Com. 347. Stat. 8 H. 6, c. 7, took away the right of voting for knights of the shire from those whose freeholds were under 408.: the qualification of a voter for coroner was untouched by that Act. The freeholders must mean the legal freeholders, those who had a right to be in the full county court. Then came stat. 7 & 8 W. 3, c. 25, s. 7, which took away the franchise for electors of knights of the shire from trustees, not in possession, and *conferred it on the cestui que trust in possession. Stat. 58 G. *864] 3, c. 95, s. 2, contains a precisely similar provision as to the election of coroner. But stat. 7 & 8 Vict. c. 92, repeals stat. 58 G. 3, c. 95, absolutely, and, by sect. 9, enacts that the coroner for a district "shall be chosen by a majority of such persons residing within such district as shall at the time of such election be duly qualified to vote at the elections of coroners for the said county." As stat. 58 G. 3, c. 95, is repealed, this section must be understood to mean those duly qualified at common law to vote, and that, as already shown, means those who have legal freeholds. Now in the present case it is clear that Raggett has no legal interest in Box Moor. The legal estate is in the trustees, who have power to let the land. It may be doubted whether the inhabitants of Hemel Hempsted have any legal interest at all; but at most it is only a right of common in gross. But "He which hath no other freehold than common of pasture, though that be to the value of 40s. per annum, yet he may be no chooser: But he which hath a freehold house or lands, of the yearly value of 30s., and besides hath thereto belonging a common of pasture appendant, to the yearly value of 208., he may be a chooser, &c. Otherwise it is, if his house be a new erected tenement, or erected within the time of memory; for that common appendant must be by prescription; and therefore except such house be of the yearly value of 408. besides the common, it enableth him not." Dalton on Sheriffs, 333, ch. 92. That is said of the franchise of voters for knights of the shire. The value of the freehold is