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1844. Under the above agreement, the pauper, Ellis, occu

pied from Christmas, 1838, to April, 1841, and during THE QUEEN

the whole of that time underlet a part of the premises Inhabitants of CRANBrook: to West, who occupied such part at a rent of 51. 45. a

year. West having been an under-tenant to Ellis of a
part of the same premises previously to the making of
the above agreement, and having had his furniture dis-
trained

upon
in consequence

of Ellis not having paid his rent to the owner of the premises, he (West) paid his year's rent, which became due in 1839, by a cheque obtained from his (West's) employer, which cheque was handed over by Ellis to Dobell; and Ellis also in that year paid the further sum of 31. 2s. 6d. to Dobell, making together the sum of 8l. 6s. 6d. paid during that year on account of the rent which accrued due at Christmas, 1839. During this year Ellis paid no rate whatever.

In the course of the second year of the pauper's tenancy, that is to say, from Christmas, 1839, to Christmas, 1840, the under-tenant, West, paid his rent of 51. 4s. for that year direct to the owner of the premises.

In October, 1840, Ellis was rated to a poor's rate for the premises in question, in the sum of 7s. 3d., which rate he duly paid in January, 1841, and subsequently resided on the said premises more than forty days.

The question for the Court is, whether the pauper, Richard Ellis, under the above circumstances, acquired a settlement in Cranbrook by payment of rates. If the Court should decide this question in the affirmative, the order of sessions is to be confirmed, otherwise it is to be quashed.

Watson and Sir W. Riddell, for the appellants(a). —

(a) Before Lord Denman, C. J., Palleson, Coleridge, and Wight

mun, Js.

1844.

THE QUEEN

Inhabitants of
CRANBROOK.

The pauper gained a settlement in Cranbrook by payment of rates. It appears that he was duly rated to the poor's rate in October, 1840, for the premises in question, paid the rate, and resided forty days. That is a sufficient compliance with the 3 W. & M. c. 11, s. 6, as it has been decided that he need not pay all the rates (a). The 6 Geo. 4, c. 57, put a restriction on such settlements, by making it necessary that the tenement “ shall be occupied under such yearly hiring, and the rent for the same, to the amount of 101., actually paid, for the term of one whole year at the least.” Both these have been complied with. It is evident that the legislature did not require that the occupation should be by the pauper, as that statute repeals the 59 Geo. 3, c. 50, which did require it.

Rex v. Great Bentley (6), Rex v. Stoke Damerel (c), and Regina v. Brigthelmstone (d) are all authorities to that effect. The question then is, whether the rent was paid for one year to the amount of 101., so as to comply with that statute. It is not necessary that

pauper should pay the rent, Rex v. Kibworth Harcourt (e), Rex v. Ruthyn (f ), nor that the 101. should be paid within the same year: Rex v. Willoughby (g). In this case the pauper handed over his under-tenant's cheque to the landlord, and paid 31. 2s. himself, making together a payment of 81. 6s. in the year 1840. In 1841 the under-tenant paid his rent, 51. 4s., to the owner of the premises, which was in effect a payment by the pauper, and made up the sum of 131. 10s. [Wightman, J.

case states that West paid for that year, 1841. He Was not liable for 1840.] His goods were always distrainable by the landlord for Ellis's rent; and if the landlord received money from him, it only relieved his goods (a) Rex v. Bramley, Burr.

(d) 1 Q. B. R. 674.

(e) 7 B. & C. 790. (6) 10 B. & C. 520.

(f) 5 B. & Ad. 215. (c) 6 A. & E. 308.

(9) 4 A. & E. 143.

the

The

Sett, C. 75.

1844.

THE QUEEN

0. Inhabitants of

pro tanto. [Patteson, J.-We are not told what passed between the landlord and West: the landlord might ap

propriate the payment as he liked.] No doubt the CRANBROOK. parties may appropriate, but if they do not, the law will.

Here no appropriation is found; West was not an agent to make a specific payment, but to pay generally on account; and even an agent of a debtor cannot appropriate a payment to suit his own convenience. If there had been a surety for one year and not for another, the landlord could not have appropriated that payment to the latter year, nor would such payment be a bar to the Statute of Limitations. A constructive occupation has been held sufficient in Regina v. St. Mary Kalendar (a), and at all events this is a constructive payment.

Sir W. Follett, Solicitor-General, and Deedes, for the respondents.— The object of the legislature in the 6 Geo. 4, c. 57, s. 2, was to test, by actual payment, whether the tenant was worth 101. a year. The proposition contended for by the appellants amounts to this: that, if a pauper rents a house, and pays one year's rent, and many years after is rated, and pays one rate, he gains a settlement. But there is no evidence that the money here was paid for the year 1840, and, therefore, the Court is not at liberty to find that it was so. It is in distinct terms a payment for the following year. There is no such thing as legal appropriation of payments, except in the case of accounts between parties. [Here they were stopped by the Court.]

Lord DENMAN, C. J.-If the sessions wished us to draw an inference from the facts stated, I should say that this was not a payment on accountof the first year's rent. If they did not, they should have found the fact

(a) 9 A. & E. 626.

1844.

expressly. It would be extremely objectionable to send such a case back to be re-heard, as it would invite tam pering with the witnesses.

The QUEEN

0. Inhabitants of CRANBROOK.

The rest of the Court concurred.

Order of sessions quashed.

sions,

recog

afterwards con

In the Matter of White.

January 18th. In this case Butt moved, on behalf of the prosecution, where a party

bound, at the for a certiorari to bring up a recognisance of the peace en- quarter sestered into by William White, who had been bound over

nisances to keep at the Somerset Michaelmas quarter sessions, 1843, to the peace, is keep the

peace,

and since convicted at the October petty victed at the sessions at Wells, of an assault. The recognisances had petty sessions been duly returned to the January quarter sessions, order to estreat

proceedings could be taken on them there, and ances, it is neit was necessary to bring them up to this Court in order cessary to bring to proceed upon them by scire facias.

proceed thereon

by scire facias. WILLIAMS, J.-You cannot proceed upon them without bringing them up.

Rule granted (a).

but no

up by

certiorari, and

(a) See Regina v. The Justices of the West Riding, (In re Thornton), 7 A. & E. 583.

1844.

pauper had

case:

January 20th. THE QUEEN v. The Inhabitants of CUMBERWORTH

HALF. In the examina. On appeal against an order of two justices for the tion of a pauper removal of William Burdett and Sarah, his wife, from sent by respondents with the township of Denby, in the West Riding of the moval, it was county of York, to the township of Cumberworth Half, stated that the

in the said Riding, the sessions confirmed the order, been bound by subject to the opinion of this Court on the following denture:'. Held, that these words The examinations on which the order was made were were sufficient to shew that

(so far as was material to the decision of the Court) as the indenture, follow : which had been destroyed, and William Burdett, the pauper, said, “ When I was was executed more than about fourteen years old I was put out an apprentice by thirty years

covenant indenture to Amos Burdett for the term of seven before, was not a parish in. years, to learn the trade of a clothier, and I went to and denture. Where

resided with the said Amos Burdett in Cumberworth grounds of ap- Half, under the said indenture, for five years and six the pauper had months, when my brother, Joseph Morton, purchased gained a settle. ment “ by rent- my time out, and the indentures were destroyed, and ing a tenement, consisting of

I have never done any act since whereby to gain a the keeping

settlement." and feeding of a cow by and On the hearing of the appeal, as soon as the respondents on the land and premises had opened their case, the appellants objected that the of J. H.:Held, that

said examination was insufficient on the face of it, and that these words did the order of removal ought to be quashed. The grounds describe such a of insufficiency relied on under the grounds of appeal tenement as would confer a were, that it did not appear, by the said examination, settlement ; as whether the said binding was allowed by two justices of the pear that the

peace, and that it did not appear, by the said examination, exclusively fed either that the money given or contracted for in relation on the growing produce of the to such apprentice was inserted in the said indenture, or land.

it did not ap

cow was to be

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