before a Middlesex jury, on the ground that the offence was not committed in Middlesex, but in Surrey. If he were afterwards tried before a jury of the Central Criminal Court, the ground of his acquittal could not be gone into, and he would be entitled to a verdict on the plea of autrefois acquit.

Cur. adv. vult.

The judgment of the Court was subsequently delivered by

LORD DENMAN, C.J.-The objection in this case is that of mistrial. A jury from the county of Middlesex having been summoned, and having tried the defendants in this court, when the bill of indictment was found by a grand jury of that combined jurisdiction which was created by the Central Criminal Court Act, drawn from Middlesex and several other counties, it was said that the petty jury ought, until the passing of the recent act, 9 & 10 Vict. c. 24, to have been taken from the same mixed source, and no other. The consequence would be, that a party against whom an indictment was found in the Central Criminal Court, which was removed into this Court before the recent act passed, could not be tried at all, because the power of summoning such a mixed jury is confined to the Central Criminal Court, and could not be exercised by this. The nature of the proceeding furnishes the answer to this objection. An indictment found at that court sets forth an offence committed within its jurisdiction, and the act requires no other venue to enable it to try the defendant. But it may also, and it does in this case, contain a complete indictment at common law in the county where the offence is alleged to have been committed. It is a bill found by competent authority, well removed, and, when here, the Court sees a legal charge of misdemeanour committed in Middlesex, and has no occasion to look to that statement, which shews that it was triable in the Central Criminal Court. In this state of things we are empowered, and even bound, to direct a trial in the regular manner, by requiring the sheriff of that county to summon a jury for that purpose. The case is anomalous, because, in the ordinary course of things, the petty jury is drawn from the very same source as the grand jury, but that is no reason why there should be a NEW SERIES, XVII.-MAG. CAS.

failure of justice, and no principle of law seems to oppose the proceeding. The case of The Queen v. Stowell assumes its legality, and that of The Queen v. Albert is a direct precedent for it. The minor objection, that the venue was left uncertain by the manner of introducing "the county aforesaid," was disposed of during the argument. We then expressed our clear opinion that the reference was to the county of Middlesex. Rule discharged.

1846. July 8. 1847. Dec. 11.

THE CHURCHWARDENS AND OVERSEERS OF THE PARISH OF ᏚᎢ . NICHOLAS, DEPTFORD, v. SKETCHLEY. Charity-Lands "belonging to the parish" -Stat. 59 Geo. 3. c. 12.-Existing Trustees-Churchwardens and Overseers-Specific Trust.

Lands were conveyed in 1749 to A. and B, their heirs, &c., upon trust to permit and suffer the churchwardens and overseers of D. to receive the rents and profits to and for the use and benefit of the poor of the parish of D, with power to appoint new trustees and to grant leases for twenty-one years; and the power of the trustees was extended and their title confirmed by local acts; by the operation of which and by conveyances under the powers of the original deed of trust, the legal estate was vested in known existing trustees :-Held, first, that the nature of the trust was not special, so as to prevent the operation of the statute 59 Geo. 3. c. 12. s. 17; secondly, that the words of the 17th section of that act were imperative, and not merely enabling, in cases to which it was applicable. But held, lastly, that in cases in which there were known living trustees, section 17. did not contain words sufficiently strong to divest the legal estate from such trustees, and that property so circumstanced could not be considered as "belonging to the parish" within the meaning of the statute (overruling Rumball v. Munt, 15 Law J. Rep. (N.s.) Q.B. 180).

Debt by the plaintiff's against Thomas Jenkins, for 181. Os. 9d., for the occupation of the premises comprised in the indenture of the 27th of March 1749, hereinafter mentioned. Thomas Jenkins having dis

Ꭰ

claimed any interest in the subject-matter of the suit, and having alleged that the right thereto was claimed by the Rev. J. E. Sketchley, vicar of the parish of St. Nicholas, Deptford, he was made defendant by a Judge's order; and the sum in dispute being brought into court, the facts were afterwards turned into the following special

CASE.

By an indenture of bargain and sale, bearing date the 27th of March 1749, duly executed aud inrolled in Chancery, between Sir John Evelyn, therein described as of Wooton, in the county of Surrey, baronet, of the one part, and John Evelyn, son and heir apparent of the said Sir John Evelyn, baronet, and the Rev. Thomas Anguish, vicar of the parish church of St. Nicholas in Deptford, in the county of Kent, clerk, of the other part, the said Sir John Evelyn, for the purposes and consideration therein mentioned, did grant, bargain and sell unto the said John Evelyn, the son, and Thomas Anguish, and their heirs, a certain piece or parcel of garden ground therein described and theretofore known by the name of Stonesfield, situate at or near Tanner's Hill, in the parish of St. Paul, Deptford, in the said county of Kent, containing by estimation four acres or thereabouts, with the appurtenances, to hold the same unto the said John Evelyn the son, and Thomas Anguish, their heirs and assigns for ever, upon trust, &c. to permit and suffer the churchwardens and overseers of the poor for the time being of the said parish of St. Nicholas, in Deptford, to receive the rents and profits of the said piece or parcel of garden ground and premises, to and for the use and benefit of the poor of the said parish of St. Nicholas, Deptford aforesaid; and upon trust that, upon the decease either of the said John Evelyn the son, or of the said Thomas Anguish, then the survivor of them should (at the costs and charges of the churchwardens and overseers of the poor for the time being of the said parish of St. Nicholas in Deptford aforesaid) convey the said piece or parcel of garden ground unto the heir male of the body of the said John Evelyn the son, or to the succeeding vicar of the said parish of St. Nicholas, Deptford, aforesaid, as the case might require, and so from time to time upon every decease of a trus

tee, the survivor should convey the said premises in such manner as that the heir male of the said John Evelyn the son, and the vicar of the said parish of St. Nicholas, Deptford, for the time being, should always be the trustees, upon the trusts herein before mentioned; and it was thereby also declared that the trustee or trustees for the time being should, at the request, costs and charges of the said churchwardens and overseers of the poor of the said parish of St. Nicholas in Deptford, let and demise the said piece or parcel of garden ground and premises to any person or persons for any term or number of years, not exceeding twenty-one years, in possession and not in reversion, by indenture, and for the best improved rents that could be reasonably had or gotten for the same.

Under and by virtue of the said indenture and of a conveyance (made in pursuance thereof) of the legal estate in the said hereditaments and premises, bearing date the 28th day of June 1806, and also under and by virtue of the provisions of an act of 55 Geo. 3, intituled 'An act for better carrying into execution the trusts of certain charity lands at Deptford, in the county of Kent,' the said hereditaments and premises comprised in the said indenture of the 27th of March 1749, and thereby conveyed to the said John Evelyn the son, and Thomas Anguish, and their heirs as aforesaid, became and were, before and at the time of the passing of another act, 59 Geo. 3, intituled 'An act to amend the laws for the relief of the poor,' absolutely vested in the Rev. John Drake, D.D., the then vicar of the said parish of St. Nicholas, Deptford, and his successors in the said vicarage, upon the trusts nevertheless, and for the ends, intents and purposes expressed and contained of and concerning the said hereditaments in the said indenture of the 27th day of March 1749.

After the passing of the said act of parliament of the 55 Geo. 3. herein before referred to, the said John Drake, D.D. as such vicar as aforesaid, at the request of the churchwardens and overseers of the poor for the time being of the said parish of St. Nicholas, Deptford, granted building leases of parts of the said hereditaments and premises for long terms of years; and such leases contain covenants by the respective lessees

therein named, "to and with the said John Drake, his heirs and assigns, and his successors, vicars for the time being of the said parish of St. Nicholas, Deptford," for the payment of the rents therein reserved, and such leases also contain provisoes whereby rights of re-entry are reserved to the said John Drake, his heirs and assigns, and his successors, vicars of the said parish for the time being, in case of non-payment of such rents, or non-observance or non-performance of the covenants therein contained.

By an indenture, bearing date the 16th of December 1843, and made as to a lease for a year in pursuance of 4 Vict. c. 21, between Jeremiah Selmes and William Knott therein described as churchwardens of the said parish of St. Nicholas, Deptford, and James Archer, John Dyball, and Richard Tuckett, therein described as overseers of the poor of the same parish, of the first part; the Rev. John Drake and Thomas Drake, therein described as the only surviving sons, and William Wickham Drake and Francis Drake, therein described as the surviving grandsons, and all together the co-heirs-at-law according to the custom of gavelkind of the said Rev. John Drake, D.D. deceased, the vicar of the said parish of St. Nicholas, Deptford, in the said conveyance of 1806 and the said acts of parliament named, of the second part; and the said defendant, the Rev. A. E. Sketchley, clerk, therein described as the then vicar of the said parish of St. Nicholas, Deptford of the third part, for the nominal consideration therein mentioned, the said hereditaments and premises comprised in the said indenture of the 27th of March 1749 were, with the appurtenances, duly conveyed and assured by the said John Drake, Thomas Drake, William Wickham Drake, and Francis Drake, at the request, and with the privity, consent and approbation of the said several churchwardens and overseers of the poor, parties thereto of the first part, unto and to the use of the said A. E. Sketchley, his heirs and assigns, upon the trusts and for the same estates, ends and purposes, and by, with, and under and subject to the same powers, provisoes, declarations, and agreements as were by the said indenture of the 27th of March 1749 declared concerning the same, and were then existing.

No notice of his desire to be joined in trust has been given by any heir male of the

said John Evelyn, the son, in pursuance of the act of the 55 Geo. 3. herein before referred to.

The rents and profits arising from the said hereditaments and premises have been from time to time distributed amongst the poor inhabitants of the parish not receiving parochial relief, and not otherwise in aid of the parish rates, or for the general purposes of the parish.

The Rev. A. E. Sketchley, at the time when the rent accrued which has given rise to this case, and when it became due, and before the time of the commencement of the action, was, and still is vicar of the said parish of St. Nicholas, Deptford, and under and by virtue of the said several hereinbefore recited indentures, and of the said acts of parliament of the 46 and 55 Geo. 3, hereinbefore referred to, the said hereditaments and premises were and are now vested in the said A. E. Sketchley as such vicar, upon the trusts expressed and contained in the said indenture of the 27th of March 1749; and the said A. E. Sketchley was and is the party entitled to exercise all the powers and perform all the duties and trusts granted and imposed by the said last-mentioned indenture, and the said statutes of the 46 and 55 Geo. 3. herein before referred to, unless the same have been divested, altered, or transferred by the said statute of the 59 Geo. 3. c. 12. s. 17.

The churchwardens and overseers of the poor of the said parish contend, that by virtue of 59 Geo. 3. c. 12. s. 17. the legal estate in the said hereditaments and premises, and the right to the rent in dispute arising therefrom, are vested in them, and that the operation of the provisions of that act is to divest the vicar of any estate and interest in the said hereditaments and premises, and transfer them to the churchwardens and overseers.

The vicar contends that the estate and interest in the said hereditaments and premises vested in him as the vicar for the time being, by the said indentures and the said statutes of the 46 and 55 Geo. 3. is not divested or in any manner affected by the enactment of the said statute 59 Geo. 3. c. 12. s. 17.

The question for the opinion of the Court was, whether, under the circumstances, the legal estate and interest in the said here

ditaments and premises still continue vested in the vicar for the time being of the said parish of St. Nicholas, Deptford, or are vested in the church wardens and overseers of the said parish, under the said statute of the 59 Geo. 3. c. 12. s. 17. Should the Court be of the former opinion, then judgment was to be entered for the defendant; but should the Court be of the latter opinion then judgment was to be entered for the plaintiffs.

Malins, for the plaintiffs. By the operation of the 59 Geo. 3. c. 12. s. 17. lands vested in the parish officers are a perpetual corporation, although there were heirs of the founder who might be traced. The object of the settlor was to provide that persons well known in the parish might at all times administer the funds which he wished to apply to parish purposes. The parish officers, before the passing of the statute, were, in contemplation of the law, in the same position as the cestui que use was before the passing of the Statute of Uses. The effect of the 17th section of the act was to vest the land altogether in the churchwardens. In Doe d. Edney v. Billett (1), it was decided that when the original trustees were trustees only for the parish, the estate vested in the churchwardens by the operation of the statute.

[ERLE, J.-In that case there do not appear to have been any signs of the existence of the old corporation.]

In Rumball v. Munt (2), there was the fact of the existence of trustees appointed under the original deed. That case must govern the present, as the very point as to the vesting of the estate in the parish officers was raised, and the plaintiff, who represented existing trustees, was nonsuited, on the ground that two parties could not, at the same time, be entitled to the legal estate in the land. In Ex parte Annesley (3), it was decided, in conformity with the case of Doe d. Jackson v. Hiley (4), that the 17th section of 59 Geo. 3. c. 12. operated to take the legal estate out of the feoffees; and in Doe d. Higgs v. Terry (5) it was held, that

(1) 14 Law J. Rep. (N.s.) Q.B. 343. (2) 15 Law J. Rep. (N.S.) Q.B. 180. (3) 2 You. & Col. 350; s. c. 6 Law J. Rep. (N.S.) Exch. 81.

(4) 10 B. & C. 885; s. c. 8 Law J. Rep. M.C. 105. (5) 4 Ad. & El. 274; s. c. 5 Law J. Rep. (N.S.)

M.C. 27.

the words "belonging to such parish" are to be taken in their popular sense. In Allason v. Stark (6) it was not necessary to decide the question.

[COLERIDGE, J.-In that case strong remarks appear to have been made as to the effect of the statute where there are known trustees in existence.]

The judgment of Lord Tenterden, in Doe d. Jackson v. Hiley, seems to draw no distinction between the cases where the trustees originally appointed are in existence or not. His judgment was founded on the general probability that at any future time it might be difficult to trace them-The Attorney General v. Lewin (7). In In re Paddington Charities (8), it was only decided that the act did not apply to land vested in trustees for specific purposes to which the poorrates were not applicable, or to copyholds. The founder of this charity may be said, to a certain extent, to have shewn his acquiescence in the future provisions of the legislature, so construed, by directing that the trustees should convey to the vicar for the time being. In Gouldsworth v. Knights (9), it does not seem to have been disputed that the estate would vest in the churchwardens notwithstanding trustees were in existence, if the trusts were not special.

Badeley, contrà. Unless the case is to be governed by Rumball v. Munt the sounder construction of the statute 59 Geo. 3. c. 12. is, that even in cases where the property is settled for the benefit of the parish generally, still that statute was not intended to apply; at all events, the words are not strong enough to be construed to apply where known trustees are in existence. The case most in the plaintiffs' favour is Doe d. Jackson v. Hiley, but that case was doubted in Allason v. Stark. In Gouldsworth v. Knights, some of the trustees under the deed were churchwardens, and the question as to the title was not decided.

[COLERIDGE, J. You would contend that the statute 59 Geo. 3. only makes the churchwardens capable of taking, and that, the word "vest" not being in the statute,

(6) 9 Ad. & El. 255; s. c. 8 Law J. Rep. (N.s.) M.C. 13.

(7) 8 Sim. 366; s. c. 6 Law J. Rep. (N.S.) Chanc. 204.

(8) Ibid. 629; s. c.7 Law J. Rep. (N.S.) Chanc. 44. (9) 11 Mee. & Wels. 342; s. c. 12 Law J. Rep. (N.S.) Exch. 282.