Seventhly, Of settlement by renting a tenement. 1. The statutes, &c. Requires a renting of building or land for a year, at 101. per annum, actually paid, &c. not to be necessary to prove value. Construction of the acts. Construction of local act, as to tenements of twenty pounds a-year. To gain a settlement under 13 & 14 Car. 2, the unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bonâ fide rented by such person, in such parish or township, at and for the sum of ten pounds a year at the least, for the term of one whole year; nor unless such house or building, or land, shall be occupied under such yearly hiring, and the rent for the same, to the amount of ten pounds, actually paid, for the term of one whole year at the least: provided always, That it shall not be necessary to prove the actual value of such tenement; any thing in any act or acts, or any construction of or implication from any act or acts, or any usage or custom to the contrary notwithstanding." Rex v. Streatham, 2 M. & S. 468. By an act for regulating the parish of Clapham, a clause was introduced which Lord Ellenborough characterized as being a fraud upon all other parishes, viz. that no settlement could be gained in any house of less yearly value than 201., let for any shorter period than quarterly, where the landlord compounded for, or refused to compound for, his rate. It was held, on the construction of this statute, that this must be strictly confined to the cases mentioned, and did not apply to all houses under 201. There are some cases which explain the general effect of these statutes upon each other. Rex v. St. Mary-le-Bone, 4 B. & A. 681. Removal from St. Mary-leBone to St. Pancras. Order discharged. Case: The pauper hired an unfurnished shop in St. Pancras, of the yearly value of 107., and lived therein eight months. He afterwards hired an unfurnished shop and 1819, the date of parlour, part of a house, in St. Mary-le-Bone, at 261. a-year, which he took residence must be complete before July 2, 59 Geo. 3. The taking, if consistent with 6 Geo. 4, may be made before it. possession of on the 25th May, 1819, and resided in and occupied the lastmentioned premises upwards of forty days, but only thirty-eight days of such residence and occupancy had elapsed on the 2nd July, 1819, the day on which 59 Geo. III. c. 50, received the royal assent.-Bayley, J. The question in this case, turns entirely upon the construction of the 59 Geo. III. c. 50, which took effect from the 2nd July, 1819. The pauper had, on that day, resided in and occupied, for a period of thirty-eight days, part of a dwelling-house in Mary-le-Bone parish, at 261. a-year; so that, if the statute had not been passed, he would undoubtedly have acquired a settlement in Mary-le-Bone, by his subsequent residence and occupation, which, in the whole, considerably exceeded forty days. But he had not, on the 2nd of July, acquired such settlement. It was contended, that the statute, being wholly expressed in the future tense, did not apply to such a case, but must be considered as wholly and absolutely prospective, and confined to tenements hired after the day on which the statute took effect. If this be the true construction, then a residence of one day prior to the statute, connected with a continued residence in pursuance of the original hiring for thirty-nine days after the statute, will confer a settlement. The statute, however, had in view, as appears by the preamble, the preventing of the disputes and controversies which had arisen respecting the settlement of poor people by the renting of tenements. And we think this object will be best attained by giving to the words of the enacting part their full and absolute effect, and by considering the statute as applicable to every case within its scope, wherein a previous settlement had not been completely gained and established before the statute was passed. A contrary construction might open the door to many disputes and controversies as to the nature and effect of inchoate titles. Whereas, according to the construction which we adopt, the only enquiry hereafter will be, whether a settlement had been acquired before the 2nd July, and the case will be considered as if the pauper had died or removed from the tenement on the first day of that month, and as if he had resided on, but not after that first day of July. Order of sessions quashed, and original order confirmed. Rex v. Ditcheat, 9 B. & C. 981.-Bayley, J., said. As to the question, whether the holding before the 6 Geo. IV. c. 57, and the holding subsequent to that period, can be connected, I am of opinion they may, provided the occupation before, le such as will satisfy the 6 Geo. IV.; and therefore if a party, before 6 Geo. IV. began to operate, was in possession of a yearly tenement, and held it under such circumstances as that statute says shall be requisite to gain a settlement, a settlement will be gained. There are no words in 6 Geo. IV. which import that the taking shall be subsequent to the time at which that statute came into operation. Seventhly, Of settlement by renting a tenement. operate as a 14 Car. 2. In Rex v. Carshalton, 6 B. & C. 93; 9 D. § R. 132; it was urged, that 1. The statutes, as the 6 Geo. IV. c. 57, recited the 59 Geo. III. c. 50, and then repealed &c. that statute, without making any provision for such cases as might arise in The repeal of 59 the interval between the passing of the two acts, the 59 Geo. III. operated Geo. 3, does not pro tanto as a repeal of the 13 & 14 Car. II., which conferred a settlement, reviver of 13 & by a residence of forty days, on a 107. tenement. Then, as the pauper resided for forty days on a 101. tenement, in the interval between the two statutes alluded to, he gained a settlement under the 12 & 13 Car. II. which thus became revived.-Bayley, J. See the extent to which that argument might be pushed. Suppose, by a statute of Elizabeth, it was made felony without benefit of clergy, to steal to the value of 40s. in a shop; that by the 10th Geo. III. the same offence was made clergyable, and that by the 20th Geo III. the 10th Geo. III. was repealed; then, according to your argument, an offence of that description, which was committed between the passing of the two latter acts, but not brought to trial till after the repealing act passed, would be an offence not clergyable. 2. What is a Tenement under 13 § 14 Car. II. c. 12. (a) ment, &c. It is necessary to retain the old cases relating to this act, because the 59 2. What is a tene Geo. III. c. 50, was confined to England, and because that statute did not affect the acquisition of settlements, by the payment of parochial taxes, in respect of a tenement of the value of 101. ditaments. An incorporeal hereditament is a tenement within the meaning of the Incorporeal herestatute, Rex v. Piddletrenthide, 3 T. R. 772; Rex v. Hollington, 3 East, 113; Rex v. Chipping Norton, 5 East, 239. Kinver v. Stone, 2 Stra. 678. A special order of sessions stated, that the A concy warren pauper rented a coney warren and a cottage upon it at 10l. a-year.-By the is a tenement. Court: A mill hath been held to be a tenement within the statute, and why not this? It is his ability to pay 101. a-year, that is the foundation of the settlement; and whether he pay it for a house of habitation, or for a warren which brings him in a profit, is not material. [See also S. P. Rex v. Piddletrenthide, post, 530.] Rex v. Old Alresford, 1 T. R. 358. Removal from Old Alresford to Chilton Candover, quashed. Case: The pauper and his father resided in Old Alresford, under a certificate from Chilton Candover; the father rented a house and piece of land for several years at 31. a-year in Old Alresford, and during two years he held, under a parole agreement, the fishery of Alresford pond, with the grates, &c., containing about sixty acres, and also the spearsedge, flags, and rushes growing in and about the said pond, and the right of cutting the sedge growing on a piece of rough meadow, containing seven acres, not part of the pond, for which the father paid Mr. Edwards 10. a-year, and supplied his house with fish. During the time the father held the premises of E., he rented, under a parole demise, the fishery of Causeway river in New Alresford, with the grates to a fish-house there, at 31. a-year. The house and piece of land first mentioned, and the right of cutting sedge, &c., on the seven acres of rough meadow ground, and the fishery, &c., last-mentioned, were together of the annual value of 107., without taking the pond, or any thing thereto belonging, into the account.— Lord Mansfield, C. J. Upon this state of the case, the Court will consider that the fishery and the soil passed together; therefore the pauper took a tenement within the statute.-Ashhurst, J. There is no doubt but a fishery is a tenement. Trespass will lie for an injury to it, and it may be recovered in ejectment.-Buller, J. The fact of letting a fishery is sufficient, and we (a) See the division of the subject, ante, 520, and the note in Chitty's Col. Stat. Vol. I. p. 776. A fishery is a tenement, and will confer a settlement. Seventhly, Of settlement by renting a tenement. 2. What is a tene ment, &c. Liberty granted by a corporation to take sand and gravel from the bed of a river, was held a tene ment, and a settlement con ferred. tenement. must presume that the soil passed along with it; though I am by no means ready to allow that if it had been any other kind of fishery, it would not have given a settlement. Rex v. All Saints, Derby, 5 M. & S. 90. A pauper, by order of a corporation, made at a common-hall, was allowed the liberty to take sand and gravel from the bed of a river, (of which the corporation were entitled to the soil), with a condition that he sold the sand to the inhabitants of the town at a certain rate; for which liberty he paid to the corporation at the rate of 10l. per annum.-Lord Ellenborough, C. J., said; This was a tenement as it subsisted in the corporation, and the pauper is, by their permission, let into the enjoyment of it. I do not know that we are obliged to go into the title; certainly a corporation cannot demise, except by deed; but we find the pauper in the occupation of the land by their permission, and this occupation must, by fair intendment, be taken to have been an exclusive one, for otherwise it would have been reduced to a thing of no value; the corporation could not have used the land without interfering with the pauper's right (a). The pauper seems to have been in the pernancy of the whole profits of the land; he took all which covered the surface of the land. It is, therefore, as much a tenement as prima tonsura. If the question turned upon the demise, I should feel difficulty; but I think, that in point of enjoyment, this must be considered as a tenement. pernancy and A cattle gate is a Rex v. Whixley, 1 T. R. 137. Removal from Whixley to Healough, quashed. Case: The pauper served an apprenticeship to R. P., in Whirley, residing there under a certificate. In the two last years of his apprenticeship, his master rented a dwelling-house, &c., of the value of 17. 11s. 6d. a-year, and a meadow of 71. 10s. a-year; and at the same time (viz. for those two years) he occupied two cattle-gates of the value of 11. 4s. a-year, in a stinted pasture, on consideration that he should keep in repair the common highway-gates, which the persons having a right to the cattle-gates were bound to sustain. It was urged, that these cattle-gates are not like commons. They are conveyed by lease and re-lease. The owners of them are tenants in common, they have a joint possession and several inheritance, and are as much demisable as any several tenement whatsoever. It was answered, that he occupied those cattle-gates on condition of keeping the highway-gates in repair, and that this was only a licence to depasture his cattle, in consideration of his keeping the said gates in repair.-Lord Mansfield, C.J., said, these cattle-gates pass by lease and release, and cannot be devised but according to the statute of frauds; they are therefore to be considered as a tenement within the statute. Renting a right of common in gross is a tene ment. A water mill is a tenement, and gains a settlement. The Rex v. Dersingham, 7 T. R. 671. Removal from Ingoldesthorpe to Dersingham, confirmed. Case: The pauper, in June, 1795, went to reside at Dersingham, in a house with half an acre of land, and the going of two cattle on D. common, which he hired of one Pretty, at the rent of 61., till the Michaelmas following: he continued to occupy the same till the succeeding Michaelmas, at 81. a-year. In June, 1795, he hired, of one Smith, the going for three other cattle upon the same common, till the Candlemas following, at the rent of 11. 11s. 6d., and of one Chadwick the going for one other cattle on the said common for the same time, at the rent of 10s. 6d. The common rights in question were rights of common in gross. whole rent paid was 107. 2s. for the year.-Lord Kenyon, C. J. It appears that the rights of common were rights of common in gross, and that puts an end to the question. A common in gross is a matter of tenure. Lord Coke says that a præcipe will lie for it. And there is no doubt but that the pauper rented those rights of common. Order of sessions confirmed. Evelyn v. Rentcombe, 2 Salk. 536. Case was drawn up for the opinion of the Court, Whether renting of a water-mill of 10l. a-year would make a settlement?—And by the whole Court. Clearly a mill is a tenement, and the renting therefore must gain a settlement within the statute; that is, if the party live therein, or within the parish. (a) Upon this point see Rex v. Trent and Mersey Navigation Co., tit. Rate, ante, 96. Rex v. Butley, 1 Sess. Ca. 320; Burr. S. C. 107; 2 Bott, 125. The question was, Whether renting a wind-mill at 14l. a-year gained a settlement? it having been determined that a water-mill did.-By the Court. It is the same as if he had rented land of that value. Rex v. Minchin-Hampton, 2 Bott, 128; 2 Sess. Ca. 320; 2 Stra. 874; Burr. S. C. 316. The pauper rented, in the parish of Bisley, lands of the yearly value of 8l., from his father; a house, of the yearly rent of 11. 10s., from his uncle; and the same year took the pasture of a piece of land, in the said parish, from All Saints day to Candlemas, and paid 12s. for the same, which piece of land was worth 67. a-year. It was urged, that this was a good settlement. But the Court of King's Bench held, that taking the pasture of a piece of land was not more than taking the herbage, or than taking the common, which could not be esteemed part of a tenement within the meaning of the statute; but seemed to think, that if the words had been, that he had taken a pasture ground for three months, that would have made a good settlement. But the case went off upon another point, viz. for want of an adjudication. agree Rex v. Stoke, 2 T. R. 451. Case: The pauper, in addition to a house and land, in Barlaston, took the hay-grass and aftermath of a meadow for 21. 5s. 6d. for ten months, in the same parish. He paid no taxes, but he fenced the meadow and spread the hillocks. It was said, that the ment for the hay-grass and aftermath conveyed no interest in the soil, so as to give the pauper a settlement. That he derived from the contract a mere personal right to take the hay-grass and aftermath: that he was to take, not the general, but only the particular profits of the land. That Co. Litt. 4 b. took the distinction between pasturam and pascuum; by the former the ground itself passes, but the latter conveys no interest in the soil.-Ashhurst, J. It is clear, from the stating of the case, that the land was intended to pass; it states, " that for ten months the pauper took the hay-grass and aftermath of the meadow." Now why should he have taken it for ten months if the soil was not intended to be conveyed; there could be no other profits of this ground but the haygrass and aftermath; and if a man grant all the profits of the ground, he grants the land itself.-Buller, J. This is like the case put in Co. Litt. where pastura carries the land itself. The pauper was to have the hay and aftermath, which was all the produce of the soil. This is not like taking hay-grass after severance, for that is only a chattel; but here the contract was, that the pauper should take all the grass which should grow; he was to cut it, and make it into hay himself; and after that he was to have every thing that grew on the land for ten months. Rex v. All Saints, Cambridge, 1 B. & C. 23; 2 D. & R. 47. Removal of Lydia Fowler, from Holy Trinity to All Saints, Cambridge. Order confirmed. Case: The pauper, in 1793, married William Fowler, a maker of chair-bottoms and mats. In 1807, Fowler hired a house in St. Peter's, Cambridge, of the value of 91. 10s. per annum, and resided there above a year; during the same time he had two separate parol contracts for two ponds, or for the rushes and flags growing therein; one of the ponds was of the extent of three acres, in which he was to have the exclusive right of cutting the rushes and flags at his pleasure, but not of draining off the water; the owner had the right to use the water, or to drain it off, as he thought proper. For this W. F. was to pay 5s. a-year to the occupier of the farm in which it was situated. The pond was not fenced off from the rest of the field, and the occupier's cattle, when depasturing there, used the pond for drinking at; but the rushes and flags were not such herbs as the cattle would eat. The other pond was only about a quarter of an acre, and was occupied under similar circumstances, at the yearly rent of 5s. and two doormats of the value of 2s. The next year W. F. agreed to pay 10s. for the same, but died before the rushes were all gathered. The contracts for the ponds subsisted during all the time that W. F. occupied the house in St. Peter's.-Per Curiam. There is no valid distinction between a lease of grass and one of rushes growing upon the land. This case is, therefore, similar to Rex v. Stoke. If this had been a bargain for any thing in a state to be severed, as in Warwick v. Bruce (2 M. & S. 205), it would have been a personal con parish of A., and during all that subsisting parol contracts for two ponds, or the rushes and flags growing therein, which he was to sive right of cutting at his pleasure: Held, to be ment to confer a settlement in A., the whole being together above time had two have the exclu a sufficient tene the value of ten pounds per ann. Seventhly, Of settlement by renting a tenement. 2. What is a tenement, &c. Renting fogg or after-grass, con So taking land for a particular purpose. tract; but here, the pauper's husband had a right to all the rushes which might grow in the ponds during the year. That gave him a continuing interest in the soil for the whole year; and by renting those ponds, together with the house in St. Peter's, he held a tenement of greater value than 10l. per annum. It is found as a fact, that he resided in that house for more than a year; he therefore gained a settlement in that parish. The consequence is, that the pauper was improperly removed to All Saints. Both orders quashed. Rex v. Brampton, 4 T. R. 348. The pauper, T. Caile, rented premises in fers a settlement. Brampton in Cumberland, of the yearly value or 91., and during part of the time took the fogg or after-grass of two fields, the one for 30s., the other for a guinea a-year; the whole of which he occupied for more than forty days. The Court of K. B. were clearly of opinion that the pauper gained a settlement in Brampton; and that this could not be distinguished from Rex v. Stoke. They added, that taking land for a particular purpose, such as that of setting potatoes, was sufficient to confer a settlement. The tolls of a market are a tenement. Occupation of a toll-house and tolls of a bridge demised for a year by five Rex v. Chipping Norton, 5 East, 239; 2 Bott, 112. Removal from Chipping Norton to Over Norton. Order quashed. Case: The pauper went to live at Chipping Norton, where he rented a house at 81. 10s. per annum. The corporation of Chipping Norton is possessed of the fairs and markets within the borough, and of the toll for all cattle actually sold at the same. The pauper at a court-leet took the said toll by a verbal agreement of the corporation at 121. a year, and continued to collect it under that agreement for two years, when it was agreed that he should have it for ten guineas, under which last agreement he collected it for several years more.-Co. Litt. 19, b. 20, c. 2, was quoted in favour of the settlement. "The word tenements includes not only all inheritances which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning or annexed to, or exerciseable within the same, though they lie not in tenure; therefore these may, without question, be entailed as rents, estovers, commons, or other profits whatsoever, granted out of land; or uses, offices, dignities, which concern lands or certain places, &c., because all these savour of the reality." And it was added, that the renting of tolls had been so much considered as the taking of a tenement, that by sect. 56 of the general turnpike act, 13 Geo. III. c. 84, it is provided, that no toll-gate keeper shall gain a settlement by renting the tolls. On the other side it was said, that this was a mere personal contract; and it was objected that a corporation could only demise under seal, and here the tolls were stated to have been taken by a verbal agreement. And Lord Ellenborough, C. J., said, that as no interest passed to the pauper by such parol demise, the question could not be raised. It was a mere licence to him to collect the tolls, the right to which still remained in the corporation; though it might be a ground on which to apply to a court of equity. But if this difficulty (as to the mode of agreement) could be got rid of, the other point, as to the taking of the tolls being a taking of a tenement within the construction which had been put upon that statute, might be disposed of in favour of the settlement, upon the authority of Lord Coke, in his comment upon the statutes of Westminster, 2; and on Webb's case, 8 Rep.; and on the opinion of Lord Kenyon in the case referred to, that a taking of an incorporeal tenement will confer a settlement. The Court directed inquiry to be made if any interest in the tolls had passed from the corporation to the pauper, or any person under whom he claimed. But it was found that no other instrument had been executed, except a bond given by the pauper to the corporation, with sureties for the rent, and the Court said that could convey nothing from the corporation; and the order of sessions was quashed. Rex v. North Duffield, 3 M. & S. 247. Removal from Spaldington to North Duffield; confirmed. Case: By 33 Geo. III. "for building a bridge over the river Derwent," &c., certain persons are constituted a corporation, by the name of the Company of Proprietors of the Derwent Bridge, and are empowered a managing com- to have a common seal, &c. In pursuance of this act a bridge was built over the Derwent, called Bubwith Bridge, and a house erected, where the tolls are collected. In February, 1811, the pauper entered into the occupation of his toll-house, and the tolls there received, in pursuance of an instrument, members of mittee under their own seals, but not under the corporation |