that which was of Elizabeth's own acquiring, and entered into all the real estate which was in Elizabeth Chillcott's possession, and still holds the same. The question was, whether the lessor of the plaintiff was entitled to recover the whole or any part of the above premises. If the Court were of opinion he was entitled to the whole, the verdict to stand for the whole; if to part only, the verdict to stand for such part; if to none, a nonsuit to be entered.

Dampier, for the plaintiff, contended that Elizabeth Chillcott had no power under the will of Emanuel Chillcott to dispose of any part of the real property. The testator only allowed his widow to give "what she thought proper of her said effects" to her sisters for their lives; and the word effects will not carry land. It is usually applied only to personalty, and the testator has so applied it in his will; for at the beginning of his will he used the word estate with reference to his real, and the word effects with reference to his personal property. It may be said, that Emanuel Chillcott having before given both real and personal property to his widow, the words "said effects" must apply to both; but that is not necessarily so; and if the meaning of the will be only doubtful, the Court will construe it in favor of the heir at law. It is true, the lands, &c. are devised over to the heir at law after the decease of the two sisters as well as his widow; but he had before given to each of the sisters an interest in part of the landed estate, which is sufficient to satisfy those words. At any rate, the lessor of the plaintiff is entitled to recover Burge's Cottage, which the testator had given to Ann White for her life, and which therefore cannot be said to be any part of "her" (the widow's) "said effects" not having been before bequeathed to her; and of such part only as had been before devised to herself was the widow allowed to make any further disposition,

Tripp, contra, was stopped by the Court.

Lord KENYON, C. J. It is very plain what the testator meant. After giving a few legacies and bequests he devises all the residue of his property both real and personal of every description to his widow for her life, and then allows her to give what she thinks proper of her said effects to her sisters for their lives. This description must apply to the property which he had been before dealing out, amongst which Burge's Cottage is mentioned by name; the income of which he had given to Ann White, and her living in it if she thought proper(a); over all of which not before disposed of he meant to give his widow a control. And this is confirmed by the terms of the devise to the heir at law, who is not to take any thing till after the death of all the sisters. Per Curiam,

Judginent of nonsuit to be entered (b)(1).

(a) A devise of the free use of lands will pass the interest in them. Cook v. Gerrard, 1 Saund. 186.,

(b) So the word "legacy" in its ordinary signification is applied to money; but it may signify a devise of land. Per Lord Mansfield, in Brady v. Cubitt, Dougl. 40. S. P. Per Lord Macclesfield, in Beckley v. Newland, 2P. W. 182. S. P. Per Lord Camden in Williamson v. Hurst and others in Chan. M. 7 Geo. 3. MS. S. P. in Hope v. Taylor, 1 Burr. 268.

(1) Vide Doe d. Andrew v. Luinchbury & al, 11 East, 290. where the word "effects" was held to carry real estate, such being the intention of the testator as collected from the rest of the will.

The King v. Clarke.

1 East, 38. Nov. 17, 1800.

It is no objection to relators applying for a quo warranto information against the defendant for exercising the office of an alderman (his election to which they had opposed), that they afterwards made no opposition to his election to the principal office of magistracy, (to which the other was a necessary qualification); or that they afterwards attended at and concurred in corporate meetings whereat he presided, or where he attended in his official character: Such application being made within the time limited by law, viz. in 4 years after the defendant's election as an alderman.

THE defendant was called upon by a rule to shew cause why an information in nature of a quo warranto should not be exhibited against him, to shew by what authority he claimed to be an alderman of the borough of East Retford in the county of Nottingham.

The borough consists of two bailiffs, twelve other aldermen, and an indefinite number of burgesses. And thus far the affidavits on both sides agreed to the right of election of an alderman, that the bailiffs, aldermen, and burgesses for the time being, or the greater part of them, should, upon a vacancy, elect one of two burgesses, who should be submitted to their choice by a certain select body in the corporation; but by whom that nomination was in the first instance to be made was a subject in controversy, and not material to be here considered. In general it appeared, that the election of the defendant was made under circumstances of great doubt and confusion, after the senior bailiff and many of the corporators had left the Common Hall, having just before proceeded to the election of one Chapple to fill the vacant office of alderman, which election however was afterwards set aside upon proceedings had against him for that purpose.

But the principal ground on which the present rule was opposed, was that of the acquiescence of the seven relators, upon whose affidavits the rule was obtained, who were burgesses of the borough; as to which the circumstances appeared to be these: The election of the defendant to the office in question took place in July 1795, and it was not pretended that any of the relators concurred in the act of his election, but on the contrary left the Hall after the election of Chapple in which they had taken a part. The affidavits against the rule then stated, that the defendant, having been at first sworn in before the junior bailiff only, had an information in nature of a quo warranto filed against him, to which he entered a disclaimer on that account; but afterwards in Trinity Term 1796, obtained a writ of Mandamus requiring the two bailiffs to permit him to be sworn into office before them, which was accordingly done towards the latter end of 1796; since which he had always exercised his said office. That on the 29th September 1798, he had been elected into the office of senior bailiff (which can only be holden by an alderman of the borough) by a majority of the bailiffs and aldermen, in whom the right of election is vested, and had served the office for one year. That the relators were at the several times of his nomination, election, and swearing in as aforesaid, respectively burgesses of and residing within the town, and well acquainted, as was believed, with all the circumstances of the defendant's nomination and election, and of his obtaining the said writ of Mandamus, and of the oath so administered to him before the two bailiffs; and of his being afterwards elected into and serving the office of senior bailiff; these circumstances being publicly known and discoursed of in the town and neighbourhood; and have acquiesced in all those transactions as aforesaid until the present application: and that the said relators have also attended corporate meetings and elections of junior bailiffs and aldermen, at which the defendant

was present both as alderman and senior bailiff, and that they had voted on such occasions; and that they never objected to the defendant's giving his vote as alderman on such occasions.

Gibbs and Yates for the defendant, having first argued upon the merits for the regularity of the election, then contended that, even admitting it to have been irregular, yet after an acquiescence for so long time on the part of the whole corporation, including the present relators, they were now estopped from objecting to it. No opposition was made to the Mandamus to swear in the defendant in the first instance, nor to his subsequent election to the office of senior bailiff, which can only be holden by an alderman, and which was therefore a recognition of his title as alderman. And since that appointment several elections of aldermen and others have been made without any question, all which derivative titles will be destroyed if the defendant be custed. As before the late act of the 32 Geo. 3. c. 58. the Court often refused applications from mere lapse of time, within twenty years, which was the period of limitation at that time; so neither was that statute intended to limit the discretion of the Court in refusing applications of this sort within six years, the limitation thereby fixed. In the Winchelsea case(a) when the Court by analogy to the statute of limitations in respect of ejectments, laid down the rule, “that they would not give leave to a common relator to commence a prosecution in the nature of a quo warranto after an acquiescence of twenty years, they observed at the same time, that though the acquiescence might be short of that period, they would not therefore grant an information, unless it appeared to be a proper case." The same rule was also fully explained in the case of The King v. Wardroper, M. 7 G. 3. (b) one of the Winchelsea cases. The Court there were unanimously of opinion, that the rule ought to be discharged with costs. "They admitted that no length of time will establish a right against the crown; and that if his majesty's Attorney General were to file an information on behalf of the crown, the defendant's long enjoyment would be no bar, without shewing a good title. But when the information is only by a common relator, who cannot proceed without the leave of the Court, a long acquiescence in the defendant's right may operate upon the discretion of the Court, and induce them to refuse their own leave for so stale and ill-timed a prosecution. If the Court were of course to grant every information that is asked, the stat. of Queen Ann, which requires the Court's leave before a relator can commence a prosecution, would be virtually repealed, and the Court deprived of the discretion reposed in them. The view of that statute was on the one hand to facilitate and speed the removal of usurping officers and pretended corporators; and on the other hand, to restrain all improper and vexatious prosecutions, by putting it in the power of the Court to refuse their leave. The stat. 4 & 5. Wil. and Mar. c. 18. has reposed in the Court the same discretionary power over crimina informations. The title of that act is an act to prevent malicious informations; and with that view it directs that the clerk of the crown shall not receive or file any informations without the express order of the Court. And though the words of that statute relate only to informations for trespasses, batteries, and other misdemeanors; yet it was holden in the case of the King and Morgan, Carth. 503. that under the word misdemeanors it extends to informations in the nature of a quo warranto: for an usurpation of an office or franchise is a misdemeanor, and liable to a fine. It is evident, therefore, that the Court have a right to use their own discretion, and to grant or refuse an application of this kind according as they shall think it expedient or not. The next consideration is, Whether upon the case now disclosed it would be proper to permit the prosecution applied for?

(a) 4 Burr. 1962, and the MS. note of Mr. Justice Yates, from whence the quotation was made.

(b) This was also read from Mr. Justice Yates's MS.

It has been said, that this case does not reach the limitation of time which the Court have set against these applications; for it is not yet 20 years since the defendant was elected. In drawing that line the Court only meant it as a boundary they would never exceed; that is, they would in no case permit any common relator to disturb a corporator after a quiet enjoyment for twenty years. But it is not from thence to be inferred that they would grant informations wherever the enjoyment has been less than 20 years. They will still examine into the propriety of the prosecution under all its circumstances, and grant or refuse it as shall seem most expedient upon the whole." In R. v. Dawes, and R. v. Martin(a), two other of the Winchelsea causes, where the Court entered into the same considerations, they laid considerable stress on the circumstance, that one of the relators, though he had not originally voted for Dawes, had afterwards voted with him at subsequent corporate assemblies; and that Dawes had afterwards been elected mayor unanimously, and many derivative titles would be affected by the flaw in his title; and for these reasons, although the irregularity of Dawes' title was not denied even by himself, the rule for granting the information was discharged. Mr. Justice Yates' opinion was noted by himself in these words. After stating all the circumstances; "In all questions of this kind one great distinction is always to be attended to, that these are applications by common relators, who having no inherent right of prosecution but by the statute of Queen Ann, are left to the discretion of the Court whether they shall be permitted to prosecute or not. In the exercise of this discretion the Court is not merely to consider the validity or defect of the defendant's title, but the expediency of allowing or stopping the prosecution under all its circumstances. If informations were always to be granted whenever a defective title is shewn, there would be an end of the statute, and of all discretion reposed in the Court. The Crown has indeed at all times a right to enquire into the claims of any office or franchise, and to remove the parties unless they can show a complete legal title. But if every common relator might disturb corporations whenever he pleases, the vexations and mischiefs of so unlimited a privilege would be infinite. It was therefore one view of the statute of Queen Ann (connected with the stat. 4 & 5 of William and Mary) to lay some restraint on those prosecutions by requiring a previous leave from the Court in a matter of so general extent, and which is so often the subject of the most spirited litigations. It is much to be wished that some certain lines could be drawn, and the discretion of the Court in some degree confined. It is indeed very difficult to do it, as every different case has its own peculiar circumstances, and from those the Court must determine upon each. But the present occasion suggests the propriety of a few general rules; which, if they be not always decisive, will at least have great weight and influence with the Court. 1st, If the objection upon which the application is founded has been known and acquiesced in by the whole corporation a great number of years, it is a reason for not suffering any member of that body to impeach a title which themselves have so long and knowingly admitted. The acquiescence of the corporation would indeed give no right to the party, if his title be really defective in itself; but it is a reason why those who have suppressed that defect such a great length of time should not afterwards be admitted as common relators. The great view of the statute of Queen Ann in the privileges it allows to common relators was to hasten the removal of usurpers, and thereby prevent the ill consequences that might ensue from such usurpations; but those who have lain by and permitted the usurpation a great number of years can have no claim at all to the benefit of that act., In such a case, the application would appear to be dictated by some impure motives, some change of interests in the par

(a) 4 Burr. 2122. This was also read from the same MS. as the reasons of Mr. Justice Yates for assenting to the judgment there pronounced.

ties applying, which a court of justice will never assist. They will therefore leave it wholly to the crown alone to dispute the title. 2dly. If the parties applying for leave to prosecute did themselves give their vote for the very man they object to, and have all along concurred with him in many corporate acts without ever excepting to his title, this is also a reason for not allowing those parties to contradict their own conduct, by impeaching a title which themselves created, or have knowingly admitted. 3dly. The nature of the objection may be another reason for rejecting a stale prosecution. If the objection be vague and indefinite in its nature, depending upon evidence which the distance of time may render more difficult or uncertain, and consequently the defence more embarrassed, it might lay very unreasonable difficulties upon the defendant, if every common relator might put him upon answering it at the distance of 18 or 19 years. 4thly and lastly, If the prosecution proposed instead of reforming the constitution, and introducing good order and regularity into the corporation, would throw the whole body into general confusion, the Court would hardly suffer a common relator to commence a prosecution of so mischievous a nature."

The Court desired the counsel in support of the rule to confine themselves to the objection made to the prosecution of these relators; saying that as to the validity of the election they would not take upon them to decide it in this stage; it was enough to say that it was sufficiently doubtful to put it in a course of inquiry before a jury.

Perceval and Balguy, in support of the rule, said that it would be carrying the doctrine of acquiescence a great length to conclude the application by the present relators, because they had not been in a situation to litigate the defendant's title for four years, being two less than the limitation allowed by law. It is not pretended that they had voted for the defendant's election as alderman, which they now sought to impeach; but as far as they could they opposed it by voting for another candidate. The expence of such prosecutions is considerable, and it may not be convenient to parties to incur it immediately after an election: but if their attendance afterwards in conjunction with the party so elected at annual corporate meetings be a ground for denying their application, the statute which gives them leave to apply within six years will be rendered nugatory: for such elections are indispensably necessary in order to carry on the government of the place, and it is the duty of every corporator to attend. In the cases cited some of the relators who applied had been concerned in the very acts which they came to impeach, which furnishes a leading line of distinction whereon the Court has frequently acted. But here the relators opposed the defendant's election as alderman. Neither is it sworn that any of them actually concurred in his election as senior bailiff, though they might not have openly opposed it. They were then stopped by the Court.

Lord KENYON, C. J. The legislature have lately had this subject under revision, and have thought proper to draw a line of limitation of six years, after which no corporator's title shall be impeached for any original defect in it. This is a most wise, and beneficial rule; and it is fit that our discretion should be governed by the same limitation in ordinary cases, so as not unnecessarily to fetter these applications beyond what the legislature have thought proper to do. The Court have indeed on several occasions said, and said wisely, that they will not listen to a common relator coming, though within the time limited, as a mere stranger to disturb a corporation with which he has no concern(a), nor even a corporator who has acquiesced or perhaps con

(a) In the case of the King v. Kemp, H. 29 G. 3. a similar application was made against the defendant for claiming, &c. to be a freeman of the borough of Seaforth, at the relation of one Watts, who was a stranger to the corporation, and who rested the application on his own affidavit, which was insisted on as a preliminary objection to granting the rule, though there was also a sufficient answer given upon the merits. The Court discharged the rule with