Seventhly, Of settlement by renting a tenement. 15. Occupation, &c. А рапрет оссиpied a tenement till within three days of the end he died. His family remained in it beyond the year: No settle ment was gained. N. B. This was before the 6 Geo. 4, c. 57. personally responsible for the rent. They were not partners in taking the tenement, though they were joint occupiers of it. She would gain no settlement by merely being a joint occupier, without having been concerned in taking it. Nor shall the person, who alone took it, lose his settlement by letting in a joint occupier. 15. Occupation under 59 Geo. III. c. 50, and 6 Geo. IV. c. 57. (a) It may be doubtful whether the legislature did not intend that "to hold" and "to occupy" should be convertible terms, as they have used them both, in these statutes, upon the same subject. The courts of law, however, have felt themselves bound to notice the distinction in their legal signification, in adjudicating upon questions of settlement law, arising since these statutes were passed. The 59 Geo. III. c. 50, requires that such house or building shall be held, and such land occupied, by the person hiring the same, to give a settlement; but the 6 Geo. IV. c. 57, enacts, "That no person shall acquire a settlement unless such house, or building, or land, shall be occupied, under such yearly hiring, for the term of one whole year at the least." "However, as the last of these statutes repeals the first, it is only in settlements by renting a tenement, where the hiring took place between the 2nd of July, 1819, and the 22nd of June, 1825, that the distinction between holding and occupying, as applied to houses or lands, can have effect, as in all cases subsequent to the latter date, when the 6 Geo. IV. c. 57, passed, it is requisite whether the tenement, in respect of which the settlement is claimed, be house, building, or land, that it should be occupied under the yearly hiring (ante, 523,4). [See observations on these statutes, post, 577.] Rex v. Crayford, 6 B. & C. 68; 9 D. & R. 80; 1 M. & R. Mag. Ca. 208. Order of removal of Sarah Stone, widow, from Bexley to Crayford, confirmed. Case: At Michaelmas, 1824, Thomas Stone, the pauper's husband, of the year, when hired a house in Bexley, for a year, at the rent and annual value of 121. He took possession on the 29th of September, and lived in the same till the 26th September, 1825, when he died. His body remained in the house till the 30th. The rent, for the first three quarters of a year, was paid by him, and for the last quarter by the pauper. The pauper continued in the house till she was removed under the order, and paid rent up to 25th December, 1825.-Bayley, J. The safest rule to adopt in these cases is, to adhere to the words of the act. (He then read the 59 Geo. III. c. 56, and added,) The settlement, therefore, is to be gained by the person who has hired the tenement, and occupied it for one whole year. Here the husband may have hired, but he has not occupied the house for a whole year, inasmuch as he expired three days before the end of the year; and assuming that the wife occupied, and paid the rent for a year, still she is not the person who hired the house. This certainly is a very critical case, and perhaps if it had been foreseen by the legislature at the time of passing the act, some provision would have been made to meet it. Order confirmed. the Rex v. North Collingham, 1 B. & C. 578; (see ante, 541.)—Upon second question in this case, namely, whether the pauper gained a settlement when he underlet a part of his tenement, Abbott, C. J., said, As to the second question, it is to be observed that a different expression is applied to land and to houses. The house is to be held, but the land is to be occupied it was, probably, intended that a party taking lodgers, properly so called, should not be thereby prevented from gaining a settlement. The question is, did the pauper hold the whole dwelling-house? It is said that the lodger held a part distinct from the rest, so that a burglary committed in that part might, in an indictment, be laid to have been in the dwelling-house of the lodger. I think, however, that that proposition is not established by the facts stated. It is said, that putting the key of the inner door into the hands of the lodger, was the same thing as if there was a brick wall between his and the adjoin (a) See division of the subject, ante, 520. Seventhly, Of settlement by renting a &c. tenement. ing room. If, indeed, it had been stated that the key was delivered to the lodger, for the express purpose of preventing the communication between the different apartments, there would be the more weight in the argument. But the key may have been delivered to him for the purpose of enabling him to enter either way; and, if that was the object, then he had not any dis- 15. Occupation, tinct dwelling-house. I rather infer, from the facts stated, that that was the object for which the key was delivered; and if so, then the pauper held the whole house, and it is to be considered as one entire tenement; and, in that case, a burglary committed in the part occupied by the lodger, must have been laid to have been in the dwelling-house of the pauper. For these reasons, I am of opinion, that the pauper gained a settlement in North Collingham. Bayley, J. The second point is a question of fact, rather than of law. The sessions might have found it a separate holding, but I see nothing in the facts stated, from which a separation of the part occupied by the lodger from the rest of the house, must be necessarily inferred.-Holroyd, J. I am of opinion, upon the facts stated, that the whole dwelling-house is to be considered as the dwelling-house of the pauper.-Best, J. It probably was the intention of the legislature, that a settlement should not be gained in such a case as the present; but we are bound to decide according to the words of the statute. As to the second point, I have no doubt, that in an indictment for burglary, the room occupied by the lodger might be described as the pauper's dwelling-house. Notwithstanding the underletting, in point of law, he still continued the tenant of the whole house. Order of sessions confirmed. Rex v. Great Bolton, 8 B. & C. 71; 2 M. & R. 227; 1 M. & R. Mag. Ca. 404. Lucy Hall, removed from Great Bolton to Little Bolton. Order discharged. Case: The pauper's mother, Mary Hall, being a widow, went to reside in Little Bolton, in May, 1823, where she hired a house, consisting of six rooms and a cellar, and being a separate and distinct dwelling house, for a year, and from year to year, at the annual rent of 11.; and she continued to hold such house, and actually paid the said rent for the same, for the space of two years and upwards. Before she went to live in the house, but after she had hired it and put some of her furniture into it, she underlet to one Clough the cellar under the house at 1s. 6d. per week, and he occupied the cellar during the whole of Mary Hall's tenancy. The cellar was let unfurnished, and Clough occupied nothing but the cellar. The cellar communicated with the street by an outer door, of which Clough kept the key; and at the time Mary Hall took the house, the cellar communicated with the room above in the house, by means of a step-ladder and a trap-door; but when she went to live in the house she took away the step-ladder, which she placed in one of the higher rooms of the house, and shut the trap-door, expressly for the purpose of preventing any communication between the cellar and the rest of the house. The trap-door was not fastened, except that the furniture of the house was placed upon it, as upon other parts of the room-floor. The trap-door was never used by the cellar tenant, or by Mary Hall. When the cellar was underlet to Clough, there was no fire-grate in it, and soon afterwards Clough applied to Mary Hall for a grate to be put up in the cellar. Mary Hall furnished the grate at her own expence, and it remained there until she left the house, when she sold the grate to Clough, who paid her for it. The pauper lived with her mother, as part of her family, in this house during the whole of her tenancy. The question for the opinion of the Court is, whether the pauper's mother, on whose settlement that of the pauper depends, gained a settlement in Little Bolton under the 59 Geo. III. c. 50.-Lord Tenterden. The safest course is to give effect to the particular words of the enacting clause. Where the legislature uses in the same sentence different words, we must presume that they were used to express different ideas. The words are, "that the house or building shall be held and the land occupied." Here the house was held for one whole year, and the pauper's mother gained a settlement in Little Bolton. Order of sessions quashed. Rex v. Stow, 4 B. & C. 87; 6 D. & R. 110; 3 D. & R. Mag. Ca. 87. Joseph Ashton was removed from Sturton by Stow to Stow. Order quashed. Under 59 Geo. 3, and sixpence a no means of access to the rest of the house. A pauper hired a three weeks after house and land Seventhly, Of settlement by renting a tenement. 15. Occupation, &c. May-day, 1821, at fifteen pounds a year; and at May-day, 1821, hired it again at the same rent for a year; and resided in the house and occupied the land, from the date of the first hiring, upwards of a year, and paid the rent: Held, that this was renting a tenement within the intent and mean 3, c. 50, and conferred a settle ment. Three weeks after May-day, 1820, the pauper took a house and land in Stow, at the annual rent of 157., for one year, from the preceding May-day, to May-day, 1821; and at May-day, 1821, he took the same again at the same rent for the year then ensuing. The pauper resided in the house, and occupied the land from the time he first hired the same, till five weeks after May-day, 1821, and paid the whole rent during the time he so occupied the May-day, 1820, to house and land.-Abbott, C. J. I am of opinion, that the sessions have in this case mistaken the law. All that the act in question requires for the obtaining a settlement has been complied with. There has been a hiring of a house and land for a whole year, at a rent exceeding 10l., and there has been a bona fide occupation and payment of rent for more than a year. That satisfies the whole of the act. It has been contended, that the legislature must have meant the hiring, occupation, and payment to be for the same year. If that had been their intention, it would have been easy to say that the occupation and payment should be for such term. But as the words of the statute have been complied with, we cannot say that a settlement has not been gained, on the ground of some supposed intention of the legislature. Bayley, J. Considering the state of the law before the act in question passed, the words of that act, and the decision of this Court in Rex v. North Collingham,(a) I think we are bound to say that a settlement was ing of the 59 Geo. gained in Stow. Before the passing of the act it was not necessary that a tenement should be hired for any specific period; the mere occupation for forty days of one or more tenements, together of the annual value of 10, sufficed. Then came the 59 Geo. III. c. 50, requiring that the tenement should consist of a house or land, or both, that it should be hired for a year, occupied for a year, and that the rent should be paid for a year. All those requisites have been literally complied with, and the case of Rex v. North Collingham decided, that the taking need not be of one entire tenement; and I collect from that case, that the Court did not think it necessary that, where there are several tenements, the holding of all should commence at one and the same time. And this is a reasonable construction of the act; for suppose a man to hire, at Michaelmas, land for a year at the rate of 9l., and in like manner to hire at each quarter of the year land of the same value, and to occupy the whole, and pay the rent for five years; unless the occupation under different hirings can be connected, it would be difficult to say that he ever occupied a tenement of 101. per annum for one whole year. That surely would be a very unreasonable construction. I am, therefore, of opinion, that the occupation under the different hirings stated in this case may be connected, and that the pauper thereby gained a settlement in Stow. -Holroyd, J. I think that a settlement was gained by the renting a tenement stated in this case, connected with the other circumstances of occupa tion and payment of rent. We are required to put a construction on a restrictive act; but even if that were not so, I should think that the words of it have been complied with. If it had been intended that the occupation should be for the same term as the hiring, the legislature would probably have introduced the words, for the said term. It seems to me, that the words, "nor unless," have been used in order to divide the sentence, and to exclude the construction now contended for on behalf of the appellants. The dicta as to the decisions on the 8 & 9 W. III. c. 30, are not applicable to this case; that statute requires that the servant shall be hired for a year, and continue and abide in the same service for a whole year; there was, therefore, strong ground for supposing that the legislature meant the service which the party was hired to perform, viz., a yearly service. But the statute now before us does not require that the occupation shall be for the same term as the hiring.-Littledale, J. Upon the strict words of the act, I think that a settlement was gained in Stow, but at the same time I cannot but think the meaning of the legislature extremely doubtful. Order of sessions quashed. Rex v. Ditcheat, 9 B. & C. 176. Removal of Martha, wife of T. Jerrard, (a) 1 B. & C. 578, ante, 541, and 574. Seventhly, Of settlement by renting a tenement. 15. Occupation, by the wife of lodger, entitles from Ditcheat to Lyncombe, quashed. Case: Jerrard rented a tenement in Lyncombe by the year, from Lady-day, 1825, to Lady-day, 1826, at the rent of 157., with liberty to quit on a quarter's notice. After the first month's occupation, Jerrard left his wife for seven months. She paid the year's rent, the receipts for which were given as if it had been received from the husband. A few days after Lady-day, 1825, Jerrard let an apartment in the tenement &c. to Gay, at the yearly rent of 81., with liberty to quit on a quarter's notice. Since 6 Geo. 4, Gay occupied till Lady-day, 1826, and paid his rent to that time. Jerrard c. 57, occupation gave notice at Christmas, 1825, to quit at Lady-day, 1826. The landlord the tenant, and permitted the wife to occupy part of the tenement till Midsummer, 1826, on of part by a paying 38s. for the same, till which time she lived there. Jerrard never paid husband to a any parochial rates, although rated.—Bayley, J. The statute 59 Geo. III. settlement. c. 50. is repealed by the statute 6 Geo. IV. c. 57. The question, therefore, in this case is, whether a settlement was or was not obtained under the lastmentioned statute? By the 59 Geo. III. c. 50, a settlement could not be obtained in the case of a house or building, unless such house or building were held, or, in the case of land, unless it were occupied, and the rent for the same were actually paid, for the term of one whole year, at the least, by the person hiring the same. There was, therefore, a specific enactment that the house should be held, and the land occupied, and the rent paid, by the person hiring the same. The language of the 6 Geo. IV. c. 57, is different. That statute is wholly silent as to the occupation or payment of rent by the person hiring; and it has been decided in Rex v. Kibworth Harcourt,(a) that, according to the true construction of the statute, the payment of rent need not be made by the party hiring. The words, by the person hiring the same, are to be considered, therefore, as struck out of the statute 6 Geo. IV. c. 57, and the law altered, so far as it required that the rent should be paid by the person hiring the premises. It is now sufficient if it be paid either by the person hiring, or by any other person. The words of the 6 Geo. IV. c. 57, s. 2, are, that the house, or building, or land, shall be occupied under such yearly hiring, and the rent for the same, to the amount of 107., shall be actually paid for the term of one whole year at the least. Here the phrase is varied. The statute says, not that the house or land shall be occupied by the person hiring the same, but only that it shall be occupied under such yearly hiring. And although it may be difficult to arrive with certainty at the meaning of the legislature, which is not expressed in very intelligible language, I incline to think the true construction of those words is, that it shall be occupied by the person to whom that hiring gives the right of occupation, and that occupation by any other person to whom that right is communicated, either by assigning or underletting, is not an occupation under the yearly hiring within the meaning of the statute. That is my present opinion. If between this time and to-morrow morning I should change that opinion, I will certainly communicate it to the Court. My learned brothers think that the words under such yearly hiring do not make occupation by the person hiring, requisite, but that it is sufficient if either he himself, or any other person under him, occupy. I think that a party who occupies as an under-tenant, though he may be said in some sense to occupy under the yearly hiring, cannot be said to occupy under the yearly hiring within the meaning of this clause of the act of parliament; because, though he does occupy in part under that yearly hiring, he does not in toto; he occupies under the yearly hiring and something else. As to the other question, viz., whether the holding before the 22nd of June, when the 6 Geo. IV. c. 57, was passed, and the holding subsequent to that period, can be connected, I am of opinion they may, provided the occupation before the 22nd of June be such as will satisfy the requisites of the 6 Geo. IV. c. 57; and, therefore, if a party before the 6 Geo. IV. c. 57 began to operate, was in possession of a yearly tenement, and held it under such circumstances as that statute says shall be requisite in order to gain a settlement, a settlement will be conferred. There are no words in the 6 Geo. IV. c. 57, which import that the taking (a) Ante, 572. Seventhly, Of settlement by renting a tenement. 15. Occupation, &c. Case to be sent back to the sessions upon a point as to the fact of residence for forty days. shall be subsequent to the time when that statute came into operation. With respect to the residence for forty days, I think the case ought to go down to the sessions again, in order that it may be stated more distinctly what the nature of the residence was, or whether the whole forty days' residence required, was actually by the husband himself. The cause of the husband's absence, whether it arose from his own free will, or from compulsion, or from other circumstances, may possibly be material. In Rex v. St. George, Southwark, the husband was incapacitated by law from residing in his own house; for he was in prison during the whole of the time, and had not the power of residing on his own property for forty days.-Littledale, J. The principal difficulty in this case arises upon the construction of the word "occupied," in the statute 6 Geo. IV. c. 57. There is a material difference between a holding and an occupation. A person may hold, though he does not occupy. A tenant of a freehold is a person who holds of another: he does not necessarily occupy. In order to occupy, a party must be personally resident by himself or his family. In this case it seems to me, that the pauper has been the occupier of the house during the whole period. We have no distinct account how the apartment was let or occupied. In an indictment for housebreaking, it might be laid to be the house of the pauper's husband. So in an action for use and occupation, he might properly be described not merely as holding but as occupying the house. In the statute 11 Geo. II. c. 19. s. 14, which gives the action for use and occupation, where the agree ment is not by deed, a distinction is made between the words held and occupied. That section enacts, "that it shall be lawful for the landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, &c., held or occupied by the defendant, in an action on the case for use and occupation of what was so held or enjoyed." By the statute of the 43rd of Elizabeth, the rate for the relief of the poor, is to be on the occupier. The rate in this case must clearly have been made on the pauper's husband for the whole house, though he underlet part. In Nolan's Poor Laws, 176, it is laid down that no lodger, though possessing the principal part of the house, was ever rated; but the owner, how small soever the part reserved for himself, is in the eye of the law the tenant for the whole, and is rated as the occupier. Then, as in an indictment for housebreaking (committed in the apartment let to Gay), the house might be described as the dwelling-house of the pauper's husband; and as he might be described as the occupier of the house, in an action for use and occupation, and would be rateable to the poor as occupier in respect of the whole house, I think he must be considered, in point of law, as having occupied and resided in this house. It is not necessary, in order to make a man an occupier, that he should actually sleep or take his meals in a house, or that his family should actually dwell in the whole house; but the law considers him, for this purpose, an occupier, if he hold the whole, and by himself or his family occupy part. I think, therefore, the pauper's husband may be considered to have occupied the house within the meaning of the 6 Geo. IV. c. 57. It might have been otherwise if he had underlet the whole house, and occupied no part. The word occupation, as applied to a house, undoubtedly implies personal residence. But if a lessee of a house dwell in any part of it, though he let the other part, he, in point of law, is to be considered as the occupier of the whole. If that be the true construction of the word " occupied," the pauper's husband occupied the house; and then the only question is, whether there has been forty days' residence by the pauper's husband? and upon that point there is some doubt. That certainly is essential; for the legisla ture did not intend, by the 6 Geo. IV. c. 57, to alter the law in that respect. Upon the finding in this case, I rather collect that the pauper's husband had abandoned his wife, and gone to pursue his own course of living in some other place. If he had merely gone away for the purpose of business, with the intention of returning, the residence would be there still, though he was temporarily absent. I agree with my brother Bayley, that the case ought to be sent back to the sessions, in order to have the fact ascertained. -Parke, J. I have entertained considerable doubt in this case; but I am inclined to think that a settlement was gained in the parish of Lyncombe |