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Seventhly, Of settlement by renting a tenement.
7. Permissive Occupation is a “ coming to settle."
If the party be let into possession by prior tenant, it will suffice.
following, and paid the rent for the same.—Lord Kenyon, C. J., thought, If the question had depended on the title the pauper claimed under the will, it would not have been sufficient to give a settlement. But it being stated that the pauper resided for more than forty days on a tenement of more than the yearly value of 101., for which he paid rent, he had no doubt; although it was said that he might have been turned out of possession by some other person having a superior right; but it was not suggested who had any better title; and the landlord who received the rent could not turn him out. — Ashhurst, J. In order to acquire a settlement by taking a tenement of 101. a-year, it is not absolutely necessary that there should be an express contract for the tenement; it is sufficient if the tenant reside forty days on a tenoment of such a value with the permission and consent of the landlord; for in such a case the law implies a contract.—Buller, J. Supposing there were no will in this case, the only persons entitled to the property of the pauper's wife's father, were the pauper's wife and her brother and sister, and if it were necessary to go beyond the implied contract between the landlord and the pauper, here is sufficient evidence to shew that all the parties interested, consented to the pauper's continuing in possession of these premises
, for the other son and daughter received 5s. each, in lieu of all their right and claim to their father's property, therefore all the parties interested agreed to this occupation by the pauper, and consequently there is no pretence to say that this was a holding by wrong.–Grose, J., of the same opinion. Both orders quashed.
Rex v. Aldborough, 1 East, 597. The pauper, by an agreement with Slap; the tenant of a cottage, occupied it, and Slap left it. He brought part
of his furniture, and occasionally resided there till he was removed. The pauper agreed to pay the same rent as Slap: Slap had no authority to let the cottage, nor did the landlord know it. The Court thought the case too clear for argument, and that the pauper gained a settlement.—And Lord Kenyon said, that nothing appears of the former tenant's term having expired, and the law gave him authority to assign his interest, and the pauper did occups above 101. a year.
Rex v. Fillongley, 1 T. R. 458. Mary Watson, removed from Beduorth to Fillongley. Order confirmed. Case: John Watson, late husband of the pauper, rented a farm of 401. a-year at Fillongley, and being distrained on for rent, his brother purchased for him out of the distress, two cows and three sheep, with which he came to Bedworth about Lady-day, 1783, where he took a house and land of 81. a-year rent, and resided thereon about three years; during which time the rent was paid, the first half-year by himself
, the second half-year by the parish of Fillongley, the third half-year by himself, and the fourth by distress. About the said Lady-day, Thomas Watsoa, in a conversation with his brother John, concerning his poverty, said, " I am sorry for your family, and therefore I will give you a close in Astley, (an adjoining parish) containing about four acres, to enjoy as long as I please, and to take it again when I please, and you shall pay nothing for it." Joka enjoyed the close, which was worth 21. 10s. a-year, for three years, during which time his brother paid the land-tax and poor-rates for the the tillage was done by the servants and horses of Thomas, and they also got in the harvest : one year the close was sown with John's
wheat, procured by the gleanings of his family, and in the last year the same was sown with
Thomas's corn, at whose expence the crops of the corn were carried to John's house. The cattle of Thomas were never put into the close, except for tilling the land; but the cattle of John were upon the close during the time he so enjoyed it.-Ashhurst, J. In all cases upon settlement law, it is the safest way to adhere to the words of the act; now taking it upon the words
, nothing can be more clear; they are “ that it shall and may be lawful, upon complaint made by thc church wardens, &c., within forty days after any person or persons coming to settle as aforesaid in any tenement under the yearly ralue of 101. for any two justices, &c., of the division where any person or persons that are likely to be chargeable to the parish shall come to inhabit, by war rant to remove, &c.” The act does not say any thing about ability; that is not the criterion. And if the party come to reside upon a tenement of 10.,
Living upon a tenement of the yearly value of ten pounds, al. though a part thereof is given out of charity, is sufficient.
a-year, he cannot be removed, and then he gains a settlement by forty days'
Seventhly, residence. But if ability, or rather confidence, were to be taken into consi- Of settlement deration, according to the case reported in Strange, yet if a man have suffi- by renting a cient credit and confidence reposed in him by another, as to be trusted with a
tenement. tenement of 101. a-year value, even out of charity, it is sufficient to answer the intent of the statute, because such a one is not likely to become chargeable. occupation is a Therefore, neither upon the words nor the meaning of the act, was this man
“coming to removable, and so he gained a settlement.-Buller, J. It is admitted that this is the first case which has come directly before the Court for a construction on this part of the statute. Now the words of the act cannot admit of a doubt : they only speak of persons coming to settle in a tenement of 101. a-year, who cannot be removed. As to the question of ability, it seems to me that this idea is founded chiefly on the words of South Sydenham v. Lamerton, (post, 581,) but the words, if attentively considered, will not warrant the construction put upon them ; for the credit he has is only for the rent he has to pay, but that is only as between him and the landlord—the credit is given by the landlord. Lord C. J. Parker, first says, “ if a wan hires a house at a small rent, and pays a fine, yet if the house is worth 101. per annum, it makes a settlement; for the settlement depends upon the value of the tenement, not on the rent." Then, indeed, he uses these words, “the reason of this statute is this: that a man who is entrusted with a tenement worth 101. a-year, is of such credit, and must have such a stock, as makes him not likely to become chargeable to the parish.”—Eyre, J., took it to be within the letter and intent of the law, “ that a man who is capable of renting a tenement of 101. a-year should be settled in that parish.” It is clear that they applied this reasoning to the persons mentioned in the former part of the act, to shew that that case did not come within the description : and this is put out of doubt by what Pratt, J., says:
“ the mischief recited by the statute, and intended to be prevented, is vagrancy of pour persons who used to come into parishes where there was the best stock ; and the statute describes who are intended by those poor, (viz.) such persons as are not capable of hiring a tenement of 10l. a-year.” Now it is material to consider what was the case on which the Court were then speaking; they were speaking of a case where the taking was of more than 10l. per annum; therefore, these expressions only relate to cases of above 101. per annum, and are to be applied to the case then before them, and are not applicable to any case where the renting is not more than 101. per annum. This is more decisive on account of what is said in the conclusion of the case; where, describing the poor persons whom the act intended to exclude from gaining settlements, Pratt, J., says, "such persons as are not capable of hiring å tenement of 101. a-year.” There are no such words in the act; but if we have recourse to the preamble, it speaks of rogues and vagrants, and persons who are burthensome to the parish: these, ther re, are the persons of whom the statute speaks as likely to become chargeable; and therefore the expressions in that case are only to be considered as particular instances of persons who, from their situation in life, were not likely to fall within the description of persons in the preamble of the act. But one who is settled on a tenement of 101. a-year is not within the act. It has been contended that the pauper never had the tenement; but it is impossible for us to say so, after the justices have stated that he had it under an agreement, which made him a tenant at will; for what is to become of the estate after he had sown it with corn? Its being gained by gleaning is not material; for supposing he had stolen it, it would have been just the same; he would have been entitled to the growing crop; he was then in possession of a tenement of 101. a-year, and could not have been turned out by his brother; therefore this is a sufficient taking of a tenement within the statute. Order of sessions quashed.
Rex v. Fritwell, 7 T. R. 197. Robert Hearne removed from Stoke Lyne A person renting to Frituell. Order confirmed. Case : Thomas Hearne, the pauper's father,
one parish and about twenty-two years since, rented two farms in Stoke Lyne, one at 35l. residing rent-free and the other at 1ől. a-year; during the last four months that he occu- in a tenement in pied the above farns, he dwelt in Frituell, in part of a house belonging to a settlement where relation, who permitted him to live in it rent-free; the house consisted of he resides.
a tenement in
7. Permissive occupation is a
Seventhly, two separate tenements, one of which the pauper occupied, together with a Of settlement barn, &c. He kept a team there, and drew his corn from his farm at Stoke by renting a Lyne to Fritwell. In this separate tenement he continued nearly two years,
but never occupied any land in Fritwell. This separate tenement and use of the barn, &c., were of the yearly value of about 35. He never paid any
rent in respect thereof, but his relation had all the dang and manure made “coming to by the pauper's cattle, and spread it upon his own lands in an adjoining
parish.—Lord Kenyon, C. J. It is now too late to enquire into the propriety of all the decisions that have been made on the settlement laws since the passing of 13 and 14 Car. II.; for even though it should appear on such enquiry (which I do not suggest is the case), that the words of that statute have been in some instances strained, yet as there is a series of decided cases on the subject, we ought not now to depart from them; if when the question first arose it had been holden, that the party must have one single tenement in the parish of 101. a year, perhaps such construction of the act would have fallen in with the general opinion of mankind : however, it was not long ago decided, that it need not be one undivided tenement held under one landlord, nor all lying in one parish, for that distinct tenements, held under different landlords, and lying in different parishes, may be joined together; and provided they all together amount to the annual value of 10l. they will confer a settlement on the party; and that being once decided, I think it puts an end to this question. Here the pauper's father, who rented two tenements in Stoke Lyne, went to Fritwell, where he entered into part of a house forming a distinct tenement by itself, and belonging to his relation, where he was permitted to live, but not, as has been argued, out of charity. This is not like one of the cases cited, where the pauper was taken into the house of his son-in-law as a lodger; for here were two separate tenements, the whole of one of which he occupied, and I am not prepared to say that his relation could have turned him out of possession on a day's notice ; and though it is stated in the case that the pauper paid no rent in money, it appears that there was an equivalent; there was a quid pro quo; the pauper brought all his dung and manure from his other tenements, and this relation had the benefit of it. As therefore he was in the occupation of more than 101. a year in the whole, and some part of it lay in Friticell, am of opinion that this case was properly decided.- Ashurst, J., thought that it might be fairly collected, that the parties stood in the relation of landlord and tenant.-Lawrence, J., thought the manure was given as compensation for the use of the tenement, and the landlord might recover for
use and occupation. Both orders confirmed. The master of a Rexv. Lakenheath, 1 B. & C.531; 2 D. FR.816. H. Bailey was remored charity school,
from Chippenham to Lakenheath. Order confirmed. Case : The pauper had
resided the last seven years in Chippenham, under the following circumstances : office at pleasure, Earl of Orford, by his will, dated the 2nd March, 1726, charged his manor years, rent free,
of, and lands in, Chippenham, with the payment of a rent-charge of 201. per
annum, to be paid to the trustees upon trust to be by them paid yearly unto ten pounds;
a person, to be nominated by the person entitled to the manor of Chippenpart of the house ham, to officiate as a schoolmaster in the parish of Chippenham, for the teaching of the children of the parish, for no other reward than the 201
. the parish at an
a-year which was to be paid to the schoolmaster, without any deduction for Held, that this taxes or otherwise, with a proviso that the schoolmasters should be remor. was a coming to able, and others nominated at the will of the person entitled to the manor.
Upon the death of a former schoolmaster, about seven years ago, the pauper
was appointed to the office. He resided at Chippenham during the seven pounds per an.
years, and until the present order (rent free) in the house wherein his pre meaning of the decessors, the schoolmasters, had resided before him, and he received, out 13 and 14 Car. 2, of the rents of the manor and estates, the annual sum of 201. The house per thereby gain and the garden attached to it were of the value of 10l. per annum, part of ed a settlement. which he underlet, during the seven years, to the parish, at the annual rent
of 21. 2s. -Scarlett and Nolan cited Rex v. Cheshunt in support of the order, and Dover relied on Rex v. Fillongley, as an authority against the order. Abbott, C. J. This case must be governed by the decision in Rex v. Fil
. longley, 1 T. R. 438. There the pauper rented a house of the value of 8.
who was remov. able from bis
resided for seven
in a house of the annual value of
he underlet to
settle upon a tenement of the value of ten
num within the
per annum, and resided in it three years. With respect to that house there Seventhly, was no question; but, about the same time that he took that house, his Of settlement brother gave him a close in an adjoining parish, containing about four acres, by renting a saying, “ I'll give you a close to enjoy as long as I please, and to take again when I please, and you shall pay nothing for it.” The Court held, that the occupation of the latter close was a coming to settle upon a tenement within occupation is a
“ coming to the statute, and the two tenements being of the value of 10l. per annum, that he gained a settlement. Ashurst, J., says, “ If the party comes to reside upon a tenement of 10l. a year, he cannot be removed, and then he gains a settlement by forty days' residence.” And Buller, J., considered that the pauper was a tenant at will. This is not like Rex v. Cheshunt, where the pauper occupied as a servant. In such a case, the occupation is that of a master. Here it is found as a fact, that the pauper occupied a house and tenement, of the value of 10l. per annum, and it is clear that he occupied in his own right, for he actually underlet part to the parish. I am, therefore, of opinion that the pauper gained a settlement in Chippenham. -Bayley, J. The occupation of a tenement of the value of 101. per annum for forty days, although no rent be actually paid, is a coming to settle upon a tenement within the statute, so as to make the party irremovable. Here, indeed, the pauper might be considered to have given his services partly in consideration of his being permitted to reside in the house, and in that case, the services so rendered would be something in the nature of a rent. At all events, he came to occupy as tenant at will, with a view to permanent residence; and that is a coming to settle upon a tenement within the meaning of the statute.—Holroyd, J. I think that the schoolmaster was tenant at will of this house. The legal possession of the house was in him, and not in the lord or receiver of the manor. In the case of a master and servant, the servant may merely have the use of the house as servant, but in that case the possession is that of the master; but here the schoolmaster actually underlet a part of the house to the parish; he, therefore, enjoyed the house as his own, and not as the servant of the lord or receiver of the
That being so, I am of opinion that he gained a settlement in Chippenham. Order of sessions quashed. 8. As to the Time for which the Contract was made under 13 f. 14 Car. II.
The above statute does not require that the tenement shall be taken for 8. As to the time, any length of time. The renting for a year was first made an essential part
&c, of the contract, by the 59 Geo. III. In cases arising under the former act, though the value is to be estimated by the year, yet the taking may be for less than a year, or for no definite period.
Rex v. Shenstone, Burr. S. C. 474 ; 2 Bott, 141. A person took a house Taking a tene. of 30s. a-year, in Gratwich, and land in King's Bromley, for the growing of ment for eight
months will gain potatoes, from Candlemas to Michaelmas, being eight months, for 11l.; and
a settlement, lodged the last forty days before Michaelmas in King's Bromley. It appeared there being also that he took them bona fide, and without any design of fraudulently obtain- resorty days' ing a settlement in the parish; and it was adjudged that he gained a settlement thereby in King's Bromley,
Staunton under Bardon v. Vlescroft, Burr. S. C. 558; 2 Bott, 142. The Same point. pauper took a tenement from 1st June till Lady-day following, for twentysix guineas, which he occupied accordingly, and paid the rent. The question was, whether, by continuing upon this tenement for forty days unremovable, he thereby gained a settlement ?-And by the Court, clearly, he did.
St. Matthew's, Bethnal Green, v. St. Botolph's, Aldgate, Burr. S. C.574 ; So by taking for 2 Bott, 135. John Fel, the husband of the pauper, hired a house for five five months. months, for which he agreed to pay 4l. He came and resided with his family there, during the five months. And the house, at the time of hiring and entering upon the same, was worth, to be let, 101. by the year. It was argued, that this could not gain a settlement. The criterion, which is the ability of a person to hire a tenement of 101. a-year value, fails in this case. For it doth not appear that this man had such a degree of credit as the statute requires. Besides that, the proportion of 41. for five months falls short of 101. a-year, by about 8d. a-month..-But by Lord Mansfield, C. J., and the Court :
after execution of an order of
Seventhly, The rent is not material, but the value. And we are concluded from treating Of settlement this tenement as under 101. a-year, by the finding of the justices, who have by renting a stated it as a fact, that at the time when he took it, it was of the value of
101. a-year to be let. And it was adjudged that he gained a settlement. 8. As to the time,
Rex v. Fillongley, 2 T. R. 709. Removal from Fillongley to Kinwalsey; quashed. Case: The pauper, on 1st January, 1786, and for some years be
fore, rented and resided on a tenement in Fillongley, of the yearly value of an order will not 101. He continued there till the 29th April, in the same year, when he was contract for rent. removed by an order of removal from F. to Kinwalsey; on the same day on inz : and a pau- which he was delivered with the order, he returned back to the tenement in per returning,
F., where he resided without making any new contract with his landlord for
the same, and without any interruption for about three quarters of a year, removal, to his
and then was removed to Kinwalsey. An appeal was entered against the tenement under such contract,
order of the 29th April, 1786, but was not prosecuted. The question was, gains a settle- whether, as the pauper entered into no new contract on his return, he could ment thereby.
be considered as “ coming to settle on a tenement of 101. per annum, within
hired for a year. (a) The above statutes first rendered it essential to acquiring this description must be hired for of settlement, that the tenement should be rented or hired for one whole year.
(See ante, 523.) The taking of a Rex v. Herstmonceux, 7 B. &. C. 551; 1 M. & R. 426; 1 M. & R. Mag.
Ca. 140. Order of removal of J. Start from All Saints, Hastings, to Herst, twenty guineas
monceux, confirmed. Case: On the 20th December, 1827, the to be paid weekly, with Foster to take a house in All Saints at twenty guineas a year, the rent but either party to be at liberty
to be paid weekly, and either party to be at liberty to give three months' to give three notice from any quarter-day, and at the expiration thereof, to determine the months' notice tenancy. The pauper continued a year in the occupation of the premises
, day, is a yearly
and paid a full year's rent. Cur. ado. Vult.— Judgment delivered by Bayley, hiring within the J. The pauper, in this case, clearly acquired a settlement in Hastings, pro
vided this was a renting for a whole year, within 6 Geo. IV. c. 57, which requires that the tenement be bona fide rented for the term of one year. This statute repeals 59 Geo. III. c. 50. There is nothing in the preamble of 6 Geo. IV. which shews that it was then in the contemplation of the legislature to require more than what would constitute, in ordinary cases, a tenancy for a year. We find no recital in the act of any inconvenience having arisen where the tenancy by the original hiring was defeasible at certain periods. There is nothing in the act to shew that by the term “one whole year," any thing more was meant than what the law considers to be a tenancy for a year. lhe question in this case will therefore be, whether this was a tenancy for a year; and I cannot entertain any degree of doubt but that this is prima facie a yearly tenancy. The legal effect of this agreement was to create a tenancy from year to year, with a proviso for determining that tenancy at an earlter period. Upon principle as well as upon authority, the legal estate was vested in the pauper, subject to being defeated. In the case of all defeasible estates, the legal estate passes in the first instance. A lease
9. The tenement
a year, &c.
a-year, the rent
from any quarter
6 Geo. 4, c. 57.
(a) See division of the subject, ante, 520.