1844.

THE QUEEN

2'.

Inhabitants of
CRANBROOK.

Under the above agreement, the pauper, Ellis, occupied from Christmas, 1838, to April, 1841, and during the whole of that time underlet a part of the premises to West, who occupied such part at a rent of 5l. 4s. 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 distrained 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 81. 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 5l. 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., Patteson, Coleridge, and Wightman, Js.

That is a

11, s. 6, as

The pauper gained a settlement in Cranbrook by pay-
ment of rates. It appears that he was duly rated to the
poor's rate in October, 1840, for the premises in ques-
tion, paid the rate, and resided forty days.
sufficient compliance with the 3 W. & M. c.
it has been decided that he need not pay all the rates (a).
The 6 Geo. 4, c. 57, put a restriction on such settle-
ments, by making it necessary that the tenement "shall
be occupied under such yearly hiring, and the rent for
the same, to the amount of 107., 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 (b), 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 107., so
as to comply with that statute. It is not necessary that
the pauper should pay the rent, Rex v. Kibworth Har-
court (e), Rex v. Ruthyn (f), nor that the 107. 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 37. 2s. himself, making
together a payment of 81. 6s. in the year 1840. In 1841
the under-tenant paid his rent, 57. 4s., to the owner of the
premises, which was in effect a payment by the pauper,
and made up the sum of 137. 10s. [Wightman, J.—
The case states that West paid for that year, 1841. He
was not liable for 1840.] His goods were always dis-
trainable by the landlord for Ellis's rent; and if the land-
lord received money from him, it only relieved his goods

(a) Rex v. Bramley, Burr. Sett. C. 75.

(b) 10 B. & C. 520.

(c) 6 A. & E. 308.

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

(e) 7 B. & C. 790.

(f) 5 B. & Ad. 215.
(g) 4 A. & E. 143.

1844.

THE QUEEN

v.

Inhabitants of

pro tanto. [Patteson, J.-We are not told what passed between the landlord and West: the landlord might appropriate 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 107. 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.

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

1844.

THE QUEEN

v.

The rest of the Court concurred.

Order of sessions quashed.

Inhabitants of
CRANBROOK.

In the Matter of WHITE.

January 18th.

bound, at the quarter sessions, in recognisances to keep the peace, is

afterwards con

victed at the

IN this case Butt moved, on behalf of the prosecution, Where a party for a certiorari to bring up a recognisance of the peace entered into by William White, who had been bound over at the Somerset Michaelmas quarter sessions, 1843, to keep the peace, and since convicted at the October petty sessions at Wells, of an assault. The recognisances had of an assault, in been duly returned to the January quarter sessions, order to estreat but no proceedings could be taken on them there, and it was necessary to bring them up to this Court in order to proceed upon them by scire facias.

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

Rule granted (a).

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

the recognisances, it is necessary to bring

them up by

certiorari, and proceed thereon by scire facias.

1844.

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

In the examina

tion of a pauper

sent by re

spondents

with

an order of removal, it was

HALF.

ON appeal against an order of two justices for the

removal of William Burdett and Sarah, his wife, from the township of Denby, in the West Riding of the county of York, to the township of Cumberworth Half, in the said Riding, the sessions confirmed the order, been bound by subject to the opinion of this Court on the following

stated that the

pauper had

"covenant in

denture:"-
Held, that
these words

were sufficient
to shew that
the indenture,
which had been
destroyed, and
was executed
more than
thirty years
before, was not
a parish in-
denture.
Where

grounds of ap

peal stated that
the pauper had
gained a settle-
ment "by rent-
ing a tenement,
consisting of
the keeping
and feeding of
a cow by and
on the land
and premises
of J. H.:
Held, that

these words did

not sufficiently describe such a

case:

The examinations on which the order was made were (so far as was material to the decision of the Court) as follow :-

William Burdett, the pauper, said, "When I was about fourteen years old I was put out an apprentice by covenant indenture to Amos Burdett for the term of seven years, to learn the trade of a clothier, and I went to and resided with the said Amos Burdett in Cumberworth Half, under the said indenture, for five years and six months, when my brother, Joseph Morton, purchased my time out, and the indentures were destroyed, and I have never done any act since whereby to gain a settlement."

On the hearing of the appeal, as soon as the respondents had opened their case, the appellants objected that the said examination was insufficient on the face of it, and that the order of removal ought to be quashed. The grounds of insufficiency relied on under the grounds of appeal were, that it did not appear, by the said examination, settlement; as whether the said binding was allowed by two justices of 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

tenement as would confer a

it did not appear that the

cow was to be

land.