taken out administration without her concurrence. In all the decisions upon the head of settlement by estate, the pauper must have the right of possession. That was the very principle upon which Rex v. Berkswell, cited on the other side, was decided. In the present case, the pauper had no legal right of possession until there was a valid assignment of her dower, and if she attempted to enter, she would be a trespasser. The legal title to the freehold was in the heir, who alone had the right of possession, subject to the widow's dower, which may be assigned either by himself, by the sheriff, or by any of the other modes prescribed by law. The answer to the argument on the other side is, that here the pauper had nothing of her own, from which it can be said she was irremoveable. Rex v. Painswick is a decisive authority to shew, that without an assignment of dower, the widow had no estate in the land which can be called her own. Here the Court stopped him. ABBOTT, C. J.-As it is agreed on both sides, that there was in fact no assignment of dower, I am clearly of opinion that the pauper in this case had not any such interest as would entitle her to the possession of any part of the estate as her own, so as to render her irremoveable. Rex v. Painswick seems to be a decisive authority; and as that case has never been impeached by any subsequent decision, I think we are bound by it, and consequently the order of Sessions must be quashed. BAYLEY, J.-There being an express decision on the point, unless we could see that that decision was wrong, we ought to abide by it. The King v. Painswick is, I think, a decisive authority upon this question. Here the 1824. The KING The of NORTHWEALD BASSETT. 1824. The KING บ. The INHABITANTS of NORTHWEALD BASSETT. pauper would never have a right of occupation; for so long as the thousand years term continued, the right of occupation would be in the termor, and whatever right she might have, could only be by assignment, which in fact has never taken place. In Rex v. Painswick the widow, after her husband's death, continued residing on the property, and there was a clear possession for forty days. The Court there decided, that, inasmuch as it was a legal right of possession in her, under the statute of Magna Charta, by which the widow would be irremoveable for forty days, she might therefore gain a settlement. She afterwards continued to reside upon the property, and she married again, and she and her second husband lived upon it for about two years. Now if the right of dower unassigned would confer a settlement to the party who was residing upon the estate out of which the dower was to issue, the husband would have been irremoveable during the whole of that time. The question in that case was, whether the children of the second marriage were settled in the parish in which the mother and father had so resided; and the Court held that they were not. Why? Because the right to have dower assigned, and residing upon the estate on which the mother was entitled to have dower assigned, was not sufficient to communicate a settlement to the husband and the children, the dower not having been, in point of fact, actually assigned. That case is precisely like this in principle, and we ought to be bound by it. HOLROYD, J.-I think the decision in Rex v. Painswick is decisive of the present case, unless we could see that it was determined upon a wrong principle. We should not be authorized in disturbing it, unless there was reason to doubt the propriety of it.. I see no reason for saying that it is wrongly decided, and therefore on the authority of that case I am of opinion that we ought to quash this order. LITTLEDALE, J. was in the Bail Court. 1824. The KING ซ. The INHABITANTS of The KING v. The COUNTY CLERK of MIDDLESEX. Clerk of Mid dlesex is entitled to take the following fees upon the hearing and ON a former day a rule was obtained, calling on the The County County Clerk of Middlesex to shew cause why an information should not be filed against him for alleged misconduct in his office. It was alleged, among other matters, that he had exacted greater fees, in a cause in which Joseph Brock was the plaintiff, and James Hulme was the defendant, than are authorized by the statute 23 Geo. 2. c. 33. the defendant in that case having been charged 8s. 10d. for his costs of suit, contrary to the said act. Cause was now shewn against the rule upon affidavits of consider determination of suits in his Court, viz. upon the appearance of both parties upon the first summons and determination an order nisi non-appear defendant able length, in which the alleged misconduct of the County of the cause, Clerk was completely negatived; and as to that part of Ss. 6d.: upon the case which imputed the exaction of illegal fees, the in consepractice of the County Court, from the year 1772 down to quence of the the present time, was stated to be this:-The plaint being ance of the entered, a warrant is issued, upon which the defendant is upon the first summoned to appear on a given day. If the plaintiff and summons, 2s.; and upon exedefendant both appear on being called on the day ap- cution on a judgment pointed, the defendant's appearance is entered, the cause against the deis heard, and an order made and entered according to the fendant, 3s. 4d.; which verdict; and the whole cost of a suit thus terminated sums include amounts to 3s. 6d., including county clerk's, bailiff's, and the fees to the county clerk, crier's fees. But if the defendant does not appear on bailiffs, and being called, the plaintiff is heard as to the amount criers. claimed, and an order nisi is made and entered for judgment on a future day. This order nisi is served on the defendant, and if he appears on the second day appointed, the case is heard as before, and an order absolute is made according to the verdict. The whole cost of the suit in the last-mentioned case amounts to 5s. 6d.; and if the defendant does not appear on the second day, an order absolute is made, and entered for judgment by default; and the whole cost in that case is 5s. 4d.: such costs in each of the two last-mentioned cases including the fees of the county clerk, bailiffs, and criers. But the cost occasioned by the defendant not appearing on the summons, amounting to 2s. or 2s. 2d. according to criers, is always paid and borne by the defendant, as being his default; and if the debt and costs are not paid on the day or days specified in the said orders absolute, the plaintiff has a right, at any time within a year, to demand an execution against the defendant, the cost of which is 3s. 4d., that is to say, 4d. to the county clerk, for the execution, and 3s. to the bailiff executing the same. In the present case the defendant had been summoned for a debt under 40s., but not appearing on the day appointed, an order nisi was made upon him to attend the Court on a second day, when he attended accordingly, and the cause being heard, a verdict was found by the jury against him, and execution awarded for the debt and costs, the amount of the latter being 8s. 10d. which sum was composed of the following items, 3s. 6d. for the order, 2s. for the order nisi, and 3s. 4d. for the execution, according to the practice of the court as above set forth. The county clerk stated in his affidavit that previously to his appointment to the said office, one Peter Hardy, together with certain other freeholders of the county of Middlesex, presented a petition to the Lord High Chancellor in pur suance of the power given by section 16 of 23 Geo. 3. c. 33. complaining of the then practice of the Court, and that other or greater fees were exacted by the then county clerk than the said act allowed; that the said petitioners then proceeded in their said petition to state the practice 1824. The KING v. The COUNTY CLERK of of the court, as it now exists, and as is above set forth, MIDDLESEX. and the fees taken for each particular proceeding in the Court, which fees so set forth and complained of, were in every respect the same fees as are now taken by the present county clerk; that the matter of the said petition had been fully heard before Lord Ellenborough, C. J. and Gibbs, C. J. and after hearing all parties, they adjudged as follows:-" We have considered the within petition, together with the affidavit of the within-mentioned Peter Hardy and Thomas Leach, and the papers thereto annexed, and have been attended by the respective attornies of the said P. H. and of the said T. L. and we are of opinion that the fees which are stated to have been received by the said Thomas Leach and the other officers of the said County Court for Middlesex, held under the 23 Geo. 2. c. 33. are justified by a fair construction of that act; and we are also of opinion, that upon the facts submitted to us, and upon our view of the said act of parliament, there is no ground for criminating the said Thomas Leach in respect of any thing which appears to have been done by him in the execution of his office of County Clerk; but we think that the warrant, in obedience to which the summons in each case is stated to issue, and which we consider to be analogous to the Sheriff's precept to his bailiff for the summons in the old County Court, ought, in point of fact, to have issued, and should issue hereafter in each case as an authority to the bailiff for the summons." The COURT, after hearing the facts and circumstances VOL. II. Q |