Seventhly, Of settlement

by renting a tenement.

5. The pauper must take as tenant.

By one entire
contract, a mas-
ter agreed to give
his servant
twenty pounds
a-year, a cottage
to live in, and

the agistment of

one cow for his own services;

and twenty-eight

pounds and the agistment of another cow in

his lodging and maintaining in the cottage two of the master's labourers. The yearly value of the lands on which the two cows were de

be equivalent to his paying rent.-Le Blanc, J. If this case depended upon any consideration involving the value of the apartments or lodging which the pauper occupied in the house of the master, I should not think the case of Rex v. Melkridge an authority that called upon us to decide in favour of the settlement; but it is stated that the yearly value of the pasturage, independently of the house in which the pauper resided, was upwards of 101. That being so, the cases which have been determined have held, that whether the pauper pay in service or in money, it shall be a coming to settle on a tenement. In this case, if the pauper's occupation of the tenement was necessarily connected with the service of the master, as in the case of occupying apartments in the house of the master, I should have no hesitation in saying that that would not have conferred a settlement, although of a greater yearly value than 107., because the occupation would have been necessary for the performance of the service, for which the master might allot what apartments he pleased. In like manner, if the master had allotted to the pauper so much milk a-day, I should have thought the pauper would not have gained a settlement. But in the present case the pauper has a distinct interest in the pasturage of the two cows, unconnected with his service to the master's dairy; and this liberty of taking the profits out of land, is found to be of greater value than 10l. I do not know, therefore, how to distinguish this from the cases already decided.—Bayley, J. A clear and particular distinction, enabling us to decide this case, has been pointed out. Here something is given to the servant unconnected with the service. It is the same thing as if the servant had stipulated that as he had a family he must have certain land for his own occupation, and that the master should allow him to become a distinct occupier of land to the value of 101. a-year. If that had been so, there are not wanting cases to shew, that it is not necessary that a rent should be paid in money, or indeed that there should be any rent at all, in order to constitute him the occupier of a tenement, but a service is quite sufficient. The case of the herdsman, Rex v. Melkridge, is full to that point. If that be so, what is the present case but that of a servant who stipulates for a profit out of land of more than the yearly value of 10l., for which he is to pay in service. Orders quashed.

Rex v. Cherry Willingham, 1 B. &§ Ĉ. 626 ; 3 D. & R. 13. Removal of Matthew Bolding, from Hougham to Cherry Willingham. Order confirmed. Case: The pauper, at May-day, 1817, contracted to become the groundkeeper of John Hill, in respect of his farm at Hougham. The master, by one entire contract, agreed to give the pauper 20l. a-year, a cottage to live in, and the agistment and whole profits of one cow for his own services; and the sum of 281., and the agistment of and whole profits of another cow, in consideration of his lodging and maintaining in the cottage two of his (Hill's) labourers. The pauper resided under these terms in Hougham, during the year, taking the whole profits of the cows, receiving his wages, the allowance consideration of of 287., and maintaining the two servants. The annual value of the lands on which the two cows were depastured, exceeded 107.; but the land necessary for one cow only, would not be of that value; that is to say, the annual value of the agistment of two cows upon the land in question would be worth 101. a-year; but of one cow, would not be 10l. a-year.—Abbott, C. J. delivered the judgment of the Court. We have considered this case, and are of opinion that the pauper acquired a settlement in Hougham. The tenement in question is the pasturage of two cows. It is found that the annual value of the land whereon the two were depastured, exceeded 10.; that the annual value of the agistment of the two would be worth 104, but of one, then not 107. It was therefore contended, in support of the orders, that although the pasturage of one of the cows must be considered as a tenement upon the authority of decided cases, yet that the pasturage of the other was not a tenement, and this upon a difference in the terms of the contract. It is found that the contract was an entire contract, that the master agreed to give the pauper 20l. a-year, a cottage to live in, and the agistment the right to agist and whole profits of one cow for his own services; and the sum of 28/., and the agistment and whole profits of another cow, in consideration of the pailper's lodging and maintaining at the cottage two of the master's labourers.

pastured, exceed.
ed ten pounds,
but the yearly
value of land suf-
ficient to depas-
ture one cow
only would have
been less than
ten pounds
Held, that the

pauper gained a
settlement by

the two cows.

Seventhly, Of settlement by renting a tenement.

5. The pauper

must take as

The question arose upon the cow thus last mentioned. Now, by this con-
tract, the pauper does not engage to employ the milk of the latter cow in the
maintenance of the labourers: he might, if milk formed a part of their diet,
as it may be presumed to have done, have given the milk of the other cow,
or he might have procured milk for them elsewhere, and might have sold
or otherwise disposed of the milk of both the cows provided by his master.
So that we cannot say the milk was given or appropriated for the mainte- tenant.
nance of the labourers; but must say, that it was given in consideration of
the maintenance of the labourers. And the consideration given or paid for
a tenement, is wholly immaterial on a question of settlement, if the yearly
value be 107. Whether the consideration be paid in money, or by services
rendered, or by any other matter, beneficial to the party receiving, was of no
importance at the time in, question, which was before the 59 Geo. III. c. 50.
We therefore think that the difference, as it was called in this contract, does
not lead to any legal distinction which can justify us in saying, that the
agistment of the latter cow was not a tenement. Both orders quashed.

Rex v. Bardwell.—(See case, ante, 537.)—Bayley, J., to his judgment there reported, added, “There is another point also which makes it extremely doubtful whether the pauper could have gained a settlement, had the going of the sheep constituted a tenement of 101. annual value. The house and garden being merely for the more convenient performance of the pauper's service as shepherd, must be laid out of consideration; he did not occupy them as a tenant, but as a servant. The stat. 13 & 14 Car. II. c. 12, requires that the party should come to settle on the tenement: now that means to reside. In all the cases determined on this part of the act, the pauper resided upon some part of that which constituted the tenement. There are cases where a party, from kindness, was allowed to reside in a house rent-free, that was held to be a tenement. But here the pauper had no residence but in the character of a servant: the house continued the master's, and the pauper was, with respect to this point, in the same situation as if he had lived in a room in his master's house. The two cases referred to, differ from this, for in each of them the pauper had property of his own in the parish, and was on that ground held to be irremovable. Rex v. Denbigh, also, is distinguishable, for there the pauper lived in the toll-house, as his own residence; and it would have been such a tenement as would confer a settlement, but for an act of parliament which says, that no gatekeeper shall gain a settlement by renting the tolls and residing in the toll-house. For these reasons I think that the pauper did not gain a settlement in Ixworth.-Best, J. In Rex v. Minster, the principal point was given up, viz. whether the feeding of the cows constituted a tenement; but the Court there thought that a house occupied by the pauper, merely as a servant, did not constitute a tenement. The legislature could not have intended mere residence as a servant, but that the party should gain credit, and reside as a tenant. If that be so, the pauper, on this ground also, gained no settlement in Ixworth.

Rex v. Shipdham, 3 D. & R. 384; 2 M. & R. Mag. Ca. 89. Order of removal of John Hall, &c., from Shipdham to Thursford, quashed. Case: In March, 1818, Sir Charles Chadd, leaving his mansion-house and estate at Thursford, agreed with the pauper to take care of his garden; and for his so doing, the pauper was allowed to take the profits of part of the garden, and to live in a cottage contiguous, belonging to Sir Charles, of the yearly value of 4l., to which a small common right was attached. The pauper was to continue in the premises for a year, before any further agreement was to take place between him and Sir Charles, unless some other person should, before that time, occupy the mansion, &c.; in which case the gardens, &c., were to be

delivered up by the pauper. The pauper continued in the occupation of the garden, under the above terms, for a year and a quarter. The produce of the garden was worth 70l. a year to the pauper, and the expence of keeping up the pleasure grounds, &c., together with the value of the pauper's labour, would amount to as much as the profits which the pauper was allowed to take. -Bayley, J. Where did the pauper reside? Not upon a tenement of his own. He resided in a cottage of Sir Charles Chadd's, and we were of opinion

Seventhly, Of settlement

by renting a

tenement.

5. The pauper must take as teuant.

A waiter at an

hotel had the tap or privilege of selling mait

yesterday, (a) that, in order to confer a settlement by renting a tenement, the party must have a residence which might be called his own home, as tenant: and that where he resides in the character of servant merely, that would not be sufficient to satisfy the words of the statute, "coming to settle." This pauper had the garden merely as servant.-Holroyd and Best, Js., concurred. Rex v. Seacroft, 2 M. §. S. 472. Removal from Leeds to Seacroft. Order confirmed. Case: The husband of the pauper, while renting and occupying a house in Leeds of the yearly value of 61., engaged himself as waiter at the hotel in Leeds; and at the same time had the tap, that is, the privilege of selling malt liquors there; and for the convenience of holding his liquors, had the use of the cellar belonging to the hotel, which had a distinct and cellar for holding separate entrance, and of which he kept the key. He paid in the whole for his situation as waiter, and for the tap and cellar, the yearly sum of 60!. The annual value of the cellar, independently of the privilege of the tap, was upwards of 61.—The Court said, That there did not appear to be any taking of the cellar as a tenant, but the use of it was only a privilege allowed him in respect of the principal thing, which was the hiring himself as a waiter. That before a party can be said to come to settle in a tenement, there must be something like a taking of it as a tenant. Order confirmed.

liquors there, and the use of the

the liquors,

which had a se. parate entrance,

and of which he
kept the key; he

paid for his situa-
tion of waiter,
and for the tap
and cellar, the
yearly sum of
sixty pounds:
Held, not such
an occupation of
the cellar as to
confer a settle-
ment.

The pauper
agreed to serve
as a labourer for
twenty pounds a
year, a house and

garden, a piece of
land for potatoes,
the milk of a cow,

and feeding a pig; under this agreement he served, and had

the exclusive oc

cupation of the

house for himself

and family:

Held, not a coming to settle on a fer a settlement.

tenement to con

A pauper, employed as a labourer by the board of ordnance, having

previously occupied a house at

Rex v. Kelstern, 5 M. & S. 136. The pauper, a married man, agreed to serve S. for a year as a labourer, and was to have 201. a year, a house and garden, a piece of land for potatoes, the milk of a cow, and feeding of a pig, which were to run on a neighbouring field: the pauper had the exclusive occupation of the house, the house was about 100 yards from the house of S., a house was necessary for the performance of his service, and if he had not had it he would have had more wages.-Lord Ellenborough, C.J. I own I have no doubt in this case, that the only occupation of this house, was the occupation of the master and not of the servant, whom the master placed there for the mutual convenience of both parties. The master's house was about 100 yards distant from it, and the servant had it thrown into the bargain in cumulation of wages. This may be compared to rooms allotted to a coachman over the stables of his master, or to an out-house, where, being a family-man, it is more convenient that he should be out of the dwellinghouse; but that is nothing more than the occupation of the master. So here I cannot see that the occupation goes farther. In Rex v. Melkridge, the question did not turn upon whether it was an occupation by the herdsman or the commoners who employed him, for it did not appear that the commoners ever had an occupation in any way, but the herdsman had it exclusively. At present, it seems to me to be incontestably plain that this was nothing more than the occupation of the master by the servant. There fore the house cannot go to form a part of the tenement so as to make up the value of 107. a-year.—Bayley, J. I take the distinction as laid down in Rex v. Minster, to be this, that if the occupation be unconnected with the service, it will confer a settlement; but if it be necessarily connected with the service, as if it be necessary for the due performance of the service, it shall not confer a settlement. Now from this case I collect that the occu pation of the house was necessary for the performance of the service; therefore it must be taken as the occupation of the master, and not of the servant. -Abbott, J. I am glad that the Court is not called on to decide that this is a coming to settle on a tenement, for it would tend to deprive labourers in husbandry of many comforts accruing from this species of agreement. If it contained a settlement, farmers would be unwilling to grant those advantages, for the loss of which no probable addition of wages would afford an adequate compensation in point of comfort.

Rex v. Cheshunt, 1 B. & A. 473. A pauper employed as a labourer by the board of ordnance, having previously occupied a house at an annual rent of 71., which was then purchased by the board, still continued to reside in part of the premises at a weekly rent of 2s. which was deducted out of his wages, and during such last occupation he also occupied a shop (the shop

(a) See Rex v. Bardwell, ante, 545.

and house together being of the annual value of 107.) and upon his dismissal
from his employment he gave up possession of the house as required. The
board had several other houses for their labourers, which they occupied only
as long as they were in the employment of the board. The Court held that
his last occupation of the house was not as tenant, but as servant, and that
no settlement was thereby gained.-Lord Ellenborough, C. J. In this case
it seems to me that the party occupied this house as a servant only, and not
in the character of a tenant. It is like the case of a coachman, who fre-
quently occupies a room over the stables, but such occupation is not within
the meaning of 13 and 14 Car. II. The pauper here was divested of the tene-
ment as soon as his service terminated. He quitted the possession reluct-
antly, and was succeeded by the person who succeeded him in his employ-
ment under the board of ordnance. All this clearly shews that he was only
entitled to hold it during and for the more convenient performance of his
service. If the Court should hold, in this and similar cases, that the legal
relation of landlord and tenant subsisted, it would become necessary to turn
such persons out of possession by the regular proceedings in ejectment, and
every gentleman having twenty or thirty cottages in which his labourers
resided, would be compelled, on any change of their service, to have recourse
to such means. This would be productive of the most serious inconvenience.
Upon the whole view of this case, I think it plainly appears that the rela-
tion of landlord and tenant never did subsist here, and unless that were so,
this was not an occupation within 13 and 14 Car. II.—Bayley, J. Rex v. Min-
ster only decided that the occupation of a tenement which was wholly uncon-
nected with the service, would confer a settlement; but that the occupation
of one connected with the service, would not. In this case the tenement is
connected with the pauper's service under the board of ordnance.
Rex v. Croft, M., 60 Geo. III., 3 B. § A. 171. Removal from Croft,
to Stoney Stanton, both in Leicestershire. The sessions on appeal dis-
charged the order, and stated the following Case: The pauper was born
in appellant's parish, but was afterwards bound apprentice to, and served
Edward Stephens, in Croft, for several years. The respondents, in answer to
this, produced a certificate from Earl Shilton, acknowledging the father of
Edward Stephens, Elizabeth, his wife, and Francis, their child, to belong to
that parish. The appellants then proved, that the father of Stephens, after
he came to Croft, under the certificate, occupied a house and homestead in
Croft, and at the same time, some land in Marston, and that in one year,
while he was in the occupation of the said premises, he agisted three cows
for two or three months in the fields of his landlord. No positive contract
for the agistment was proved. The sessions determined that the three cows
were agisted for above forty days in the year, and that the average value of
the agistment, reckoned by the year, added to the value of the other tene-
ments, made the whole above 10l. per annum; but if the value of the agist-
ment, taken only for the time the cows were on the land, were to be added,
it would make the whole less than 101.-After argument, Abbott, C. J., in
delivering the opinion of the Court said, "Upon the authorities there can be
no doubt that the facts here stated must be deemed to be a coming to settle
upon a tenement of the yearly value of 10l., within the meaning of the stat.
13 & 14 Car. II. c. 12. The only doubt was, whether a difference of con-
struction might prevail upon the certificate act, the 9 & 10 W. III. c. 11,
which is expressed in somewhat more precise terms, viz. ' bonâ fide take a
lease of a tenement of the value of 107.' It is obvious, however, that in con-
struing these words, reference must be had to the former statute, to supply
the word 'yearly,' which is wanting in this statute; and, in like manner, the
words of the second branch of this clause, 'execute some annual office in
such parish, being legally placed in such office,' have been construed, with
reference to the stat. 3 & 4 W. & M. c. 11, s. 6, to require a service of the
office for an entire year. Rex v. Inhab. of Tittleworth, Burr. S. C. 238.
No case has been found in which the stat. 9 & 10 W. III. has received a
different construction from the stat. 13 & 14 Car. II., as to the nature of the
tenement, or of the taking thereof. On the contrary, it has been decided,
that a lease at will is a lease within the certificate act, Stra. 502. And in
the case of The King v. Inhabitants of Shenston, Burr. S. C. 474, Lord

Seventhly, Of settlement

by reating a tenement.

5. The pauper must rent as tenant.

Parish officers

have nothing to do with the fact

of surety being taken for the rent.

And the question in these cases is,

whether the pauor not and whether he acquired

per were tenant

the interest of a tenant to that value.

Credit need not be given to the pauper for the

tenant for the

premises.

Mansfield says, the two acts are to be considered together, being in pari materiâ.” Order of sessions confirmed. A licence for a year to use part of the machinery of a mill, will not confer a settlement.

Rex v. Butley, Burr. S. C. 107; 2 Bott, 128. The pauper took a lease of a windmill in Benhall, for three years, but had a surety who engaged for the payment of the rent.-Page, J., said, the parish officers had nothing to do with looking into the fact of giving security. It is the credit of taking a tenement of such a value, that is the point; were it otherwise, a much greater rent might be insufficient to gain a settlement, though the act requires no more than 101. a-year. The visible credit is the grand point.

Rex v. Hooe, 4 East, 362. The pauper took a house in Hooe at 111. per annum, of Pococke, then overseer of the poor of that parish; the pauper, previous to this taking, had had his rent paid by Hooe, and after the taking was relieved by them. Previously to this taking, Porter had agreed to take part of the premises at 51. per annum, and the pauper would not have given so much for the premises if Porier had not promised to take a part of them under him. Porter guaranteed the rent to Pococke, who would not have let the premises without such guarantee. But when the agreement was made between the pauper and Pococke, the latter said expressly he made the agreement with the pauper only, and considered none but him as his tenant. There was no fraud, credit was given to the pauper for 61. only, and for the residue, credit was given to Porter only.-Lord Ellenborough, C. J. The stat. 13 & 14 Car. II., gives authority to two justices on complaint within forty days after any person" shall come to settle in any tenement," &c. No doubt this was a coming to settle by the pauper. Then it says, 66 upon any tenement;" that includes the character of tenant in which he comes to settle, which is the principal question here: and then the value, which must be 10l. a year to confer a settlement: and here the value of the entire premises was 10l. a year. Now, as to the principal question, the pauper was to all intents and purposes tenant of the legal estates for the whole; fraud being excluded by the sessions. He was subject to all the liabilities of a tenant. It is stated that the pauper took the premises of Pococke at the rent of 117., and Pococke said that he demised to the pauper only. Then shall it be said that he had not the whole interest in him, because a surety was required for the rent? Having such a surety has been holden to make no difference. But it is said that the only inducement to the landlord to let to the pauper was the security, and, therefore, credit was not given to him. But so a man's inducement to take a bill, may be the security of the drawer as well as acceptor; still he gives the latter credit. Then where there is a tenement of sufficient value, and a tenant not removable, who is liable to all the burthens of a tenant, and all the liabilities of one, and against whom, as such, every proceeding in law may be had, he gains a settlement by forty days' residence on such a tenement.-And Grose, J., said, that it was not necessary the pauper should have paid the rent; it was sufficient he had credit to be trusted with a tenement of the annual value of 101. It was not necessary

for the tenant to have paid the whole rent; for though the rent were paid by others, yet as he had credit for the whole premises, it was sufficient; and he shewed that he deserved that credit in the present instance, for he actu ally paid the whole rent. (So the case stated.)—Per Lawrence, J. It is argued, rent, if he be the that unless credit were given to the pauper for 101. a year in value of the rent, no settlement can be gained by him. But I do not know that that is a necessary conclusion. The 13 & 14 Car. II. c. 12, gives power to the justices to remove, on complaint within forty days, any person "who shall come to settle in any tenement under the value of 101." &c., unless certain things are done which are required by that statute; but they have no power given to them to remove any person coming to settle in a tenement of that value or upwards. Such a person is not submitted to their jurisdiction at all. The question, therefore, is not a question concerning the credit of the party, but whether in point of fact he came to settle; i. e. acquired the interest of a tenant in a tenement of that value; for if he did, the justices had no power to remove him. Now, upon the facts stated, it is apparent that the pauper had an interest to that amount in a tenement, as the tenant thereof, which prevented him from being an object of removal.-Le Blanc,