or build

yearly hiring,

actually paid for

riam, that under

that statute a pauper who

rented for a year

a dwelling-house

and land at a

rent exceeding

10%. per annum, which was actu who underlet the land, gained a

ally paid, but

settlement.

one shilling from a claim he had upon Townsend, for labour which he had unless such performed for him, and which Townsend accepted as an acknowledgment, or land, for the damage done to the grass by the stack. The pauper sold the grass to shall be occuTownsend in the same way in the second year, though with some variation pied under such in the price. The court of quarter sessions held, that during the operation and the rent for of the pauper's agreements with Townsend he did not occupy the field under the same to the his yearly hiring, in the manner required by the 6 Geo. IV. c. 57, and, amount of 107. therefore, that he had not gained a settlement by the hiring of this tenement. the term of one -Knox and Brodrick argued in support of the order of sessions.—Mirehouse, whole year at the least, &c. Held, contra.-Lord Tenderden, C. J. The question in this case turned on the per totam cutenement act, 6 Geo. IV. c. 57. Upon consideration we are all of opinion, that all that was required to be done by that act has been done in this case, and, consequently, that the pauper gained a settlement by renting the tenement in question. That statute enacts, that "no person shall acquire a settlement in any parish or township by, or by reason of settling upon, renting, or paying parochial rates for any tenement, not being his or her own property, unless such tenements shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide rented by such person in such parish or township, at and for the sum of 10l. a year, at the least, for the term of one whole year." Here the tenement consisted of a separate and distinct dwelling-house and land: it was bonâ fide rented by the pauper in the parish, and at and for a rent exceeding 10l. per annum for one whole year. But then the statute continues, "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 107. actually paid for the term of one whole year at the least." The rent for the term of one whole year has been actually paid. The only question is, Whether there was an occupation of the whole of the premises hired under the yearly hiring? It was objected, that the pauper did not occupy the whole of the premises hired under the yearly hiring; that he let off the land, and that this clause of the act of parliament, therefore, was not satisfied. There is a difference between the language of the statute 6 Geo. IV. c. 57, s 2, and that of the 59 Geo. III. c. 50. The lastmentioned statute required that the house should be held, and the land occupied, by the person hiring the same; but those words, "by the person hiring the same,' are omitted in the 6 Geo. IV. c. 57. The legislature, when they passed that statute, must have had in their minds the very act (59 Geo. III. c. 50,) which they were repealing. We cannot, therefore, but consider that those words were left out by design. Then the only question is, Whether the whole of the premises were occupied under the yearly hiring? It is clear that they were. That being so, every condition that was required by the terms of the act of parliament has been complied with, and the pauper has gained a settlement. We think it much the safer course to adhere to the words of the statute, construed in their ordinary import, than to enter into any enquiry as to the supposed intention of the persons who framed it. The order of sessions must therefore be quashed. Order of sessions quashed.

PP. 637, 842. Rex v. Inhabitants of Stogursey, Hil. T. K.B. A.D. 1831. Joel Leversham was moved from Stogursey, in the county of Somerset, to Kilton. Order quashed, subject to a-Case: "The office of parish clerk of the parish of Kilton being vacant in October, 1818, the pauper began then to perform the duties of that office, and continued to perform them until his removal in January, 1830, and until the order appealed against, and received a yearly salary of 21. 138. from the parish; but neither he nor any other person was, during that period, chosen to the said office by the vicar in whom the appointment is vested, nor was any such choice signified to the parishioners according to the canon. The pauper, when he first served the office, was resident in the parish of Kilve. On the 2nd of February, 1819, he took a lodging in the parish of Kilton, and resided there until the 25th of March following, when he went to the parish of Stogursey, where he has since continually resided. The question for the opinion of the Court is, Whether the pauper gained a settlement in the parish of

The pauper must
have been

legally placed in
an annual office.
A person per-
forming the
duties of a parish
clerk without
any appointment,
and without any
appointment

legal or de facto,

being signified to

the parishioners,
does not acquire
a legal settie-
parish, although
he resides
of 40 days, and

ment in the

therein upwards

performs the duties for 12 years, during which he re

ceives an annual salary from the parish. (a)

The

Kilton.-Cabbel and Jeremy in support of the order of sessions. Three points
were intended to be raised in this case. First, whether a performance of the
duties of the office was sufficient within the statute of 3 & 4 Wm. III.
without a legal appointment. Secondly, whether a residence of forty days
was sufficient, though such residence was not before the pauper entered upon
his office. Thirdly, whether the office of parish clerk is an annual office
within the statute. Since this order was brought up, the first point has been
decided in this Court in Rex v. Corfe Mullen, 1 Bar. & Adol. (a)
second point also appears to have been decided in Rex v. St Nicholas,
Hereford, ante, p. 651 (b). It is not found by the case that this was a
public annual office; there being no appointment, the court of quarter ses-
sions and this Court cannot know whether this was an annual office held by
the pauper, or whether he merely performed a voluntary service. None of
the requisites pointed out in 4 Burn's Ecclesiastical Law, p. 66, canon 91, have
been attended to. If the pauper had absented himself from the church, or
had quitted it in the middle of service, there would have been no means of
punishing him, or compelling him to perform the duties of the office.
Rex v. Lew. This is a case of the first impression. The acts of the pauper
began by sufferance. There is a mistake in using the word 'officer.' Hel-
sington v. Over. (d). In that case it was held that a curate appointed by
the sequestrator did not gain a settlement. [Taunton, J. That went on the
ground that a curacy was not an office.] Lord Mansfield says, The ap
pointment must be made by a party having authority. The pauper could
not have maintained an action for the fees attached to his office of clerk,
nor could he have voted as a freeholder at a county election. Rex v. Holy
Cross, Westgate, (e) shews that notoriety is the object, but here the parishioners
would have a right to suppose that the services of a party whose appointment
had never been announced, and who did not even reside in the parish, were
merely occasional. Erle and Bere, contra. The pauper could not have
been removed while executing this office. It is said, (2 Strange, 932, under
9 & 10 W. III.,) a certificated person, to gain a settlement, must be legally
placed therein, but execution of the office de facto is sufficient under 3 & 4
W. & M., and the pauper here was not a certificated person; that the
execution and not the appointment, is the material circumstance.—Abbott,
J. In Rex v. Holy Cross, and again in Rex v. Corfe Mullen, Bayley, J. says,
It having been determined that a parish clerk is within the act of 3 & 4
W. III., the respondents are entitled to read the act as if the word parish
clerk had been introduced into it. It is said that the settlement of a parish
Iclerk is gained in respect of his freehold. If this had been so, the cases
would have been under title Estate; but they are uniformly found in all
the books ranged under the head of Settlement by Office.-Lord Tenterden,
C. J. Suppose the pauper resided forty days on his freehold, he could not
be removed if he had been legally appointed. How do you distinguish
between the case of a curate and a parish clerk? Simply because the curate
has no office, and the parish clerk has, as decided in Gatten v. Milwich, ante,
637.-Taunton, J. The question is, not whether the office is sufficient, but
whether it can be said that the pauper has executed this office within the
meaning of the statute.

The case states that he performed the duties, which is equivalent to stateing he executed the office.

In Rex v. Lew, where the appointment had no stamp, there was no evidence of any office being held by the pauper; but in that case it was held that the circumstance of the bill being defeasible made no difference. It is desirable to avoid nice questions, in settlement law, and the plain intelligible rule is, to enquire whether the duty has been performed. The party enjoys an

(a) I was favoured with this note by Mr. Manning.

(b) 1 B. & A., 211.

(c) Steer's P. L., 595.

(d) 2 Bott's Poor Laws, 165.
(e) 4 B. & A. 619.

is, to enquire whether the duty has been performed. The party enjoys an annual salary for twelve years. It is expressly found that he served the office. Mr. Nolan makes a mistake as to Rex v. Winterbourne. In that case the office was executed by deputy. The question there did not depend on the appointment at all; it related to the settlement of a deputy.Lord Tenterden, C. J. The pauper cannot be said to have executed an annual office within the statute. Acting solely upon my own opinion, I should have great difficulty in saying that the office of parish clerk is an office within the statute. In Salkeld it is hardly put upon that ground. Powell, J., says, it was more than an annual office. Eyre, J., seemed at first to have thought otherwise. Powell, J., says, the next case speaks of an annual office. Helsington v. Over. Ashurst, J., says, I cannot avoid entertaining a doubt whether, assuming the office was for more than a year, he cannot be said to have exercised that office. The difference between the 3 W. & M. and the 8 & 9 W. III. is this, that the latter statute contains the words "legally placed." We have not to enquire whether the pauper was legally placed under the 3 W. & M. The only proper appointment would have been one by the vicar, but if the clerk had been elected by the parishoners and the vicar had assented, it might have been sufficient. But here there is nothing to give the pauper even a colourable title to the office.-Littledale, J. It is not necessary to decide whether this is an annual office; I am rather disposed to think that it would be so, but it appears to me that the pauper has not executed an annual office. It can make no difference whether the pauper served twelve years or one. It is found in the case that the pauper was not nominated by the parson. Some right should be shownsome appointment under which the pauper bona fide acted. If it had been customary that the appointment should be made by the parish, it would be sufficient, or if an appointment by the parish had been shown, the Court would have presumed a custom authorizing such election. It has been suggested that the pauper could not have maintained an action for his fees, or vote at an election, but though not legally appointed, yet if actually appointed, that would be sufficient here.-Taunton, J. It is not necessary to give an opinion whether this is a public annual office within the statute, and it probably never will be necessary to decide that point, because the clerk is incapable of being removed from his freehold. It appears to me that the pauper was never placed in the office at all. He intruded himself into the office. He cannot be said to have executed the office, when he never had the office. Order of sessions confirmed.

P. 660.-The King v. the Inh. of Lower Heyford, 1 Bar. & Adolp. 75. Upon appeal against an order of two justices, whereby the children of John Garratt were removed from the parish of Banbury, within the borough of Banbury, in the county of Oxford, to the parish of Lower Heyford, in the same county, the sessions confirmed the order, subject to the opinion of K. B. on the following case:--John Garratt, the father of the paupers, had been, for many years previous to his death, the clerk of Mr. Bignell, an attorney. In September, 1818, Mr. Bignell took certain premises in Caulcott, in the appellant parish, consisting of a cottage, garden, orchard, and about thirteen acres of land, for a term of seven years, at the yearly rent of 381., and in the year 1819, he allowed his clerk, John Garratt, (who up to that time lived at Bicester,) to reside at the cottage, as being nearer to Middleton, his own residence, and more convenient for business. Garratt accordingly, removed to Caulcott with his family, and lived in the cottage, to which three acres of land were attached, and which Garratt occupied for several years, but he never had any thing to do with the remainder of the land. Mr. Bignell always paid the entire rent to his landlord, and Garratt paid no rent; neither was any reduction made in his salary; and Mr. Bignell stated as his reason for this, that Garratt had a large family, and his salary was low, and as an augmentation to it, he, Mr. Bignell, permitted him to occupy the cottage, &c., valued by Mr. Bignell at 20l. per annum. Garratt left the premises when required, without receiving any notice to quit. In the books of the appellant parish, Garratt was rated as the occupier of the cottage and

land, and he paid the rates, although Mr. Bignell was sometimes called upon to pay, and did pay, the entire rate so assessed. The rates, when paid by Garratt, were either repaid to him by Mr. Bignell, or allowed in account. Upon these facts, the sessions determined that there was no such renting of a tenement as would confer a settlement, but confirmed the order on the ground that Garratt had come to inhabit in the appellant parish, and been charged with and paid his share towards the public taxes thereof.

Bayley, J., now delivered the judgment of the Court. This case depended on the settlement of John Garratt, the father of the paupers. The facts were these: Garratt was clerk to Mr. Bignell, an attorney. Mr. Bignell rented a cottage and about thirteen acres of land in Lower Heyford, and he suffered Garratt to live in the cottage, to which three acres of land were attached, rent free. For this cottage and land Garratt was rated, and he paid the rates; but Mr. Bignell either repaid him or allowed him the money in account. Whether he was rated for the whole thirteen acres, or only for the cottage and the three, does not appear very clearly upon the case; but if what he was rated for was of the yearly value of 10l., which has not been disputed, it is, in our view of the case, sufficient. Upon these facts twe questions appear to have been made at the sessions, one whether he gained a settlement by coming to settle upon a tenement of the yearly value of 104 and the other, whether he gained one by coming to inhabit in the parish, and being charged with and paying his share towards the public taxes and levies of the parish; the sessions thought he gained a settlement by the latter mode, and we think their decision was right. It was decided in Rex v. St. Pancras that the 35 Geo. III. c. 101, s. 4, has not entire abolished this head of settlement, but that it still remains in force where the premises for which the rates are imposed are of the value of 10 year. The 3 W. & M. c. 11, upon which this head of settlement de pends, prescribes the steps where a settlement shall be obtained b notice, and by section 6, provides that if any person who shall come inhabit in any parish shall be charged with and pay his share towards the public taxes or levies of the said parish, he shall be adjudged t have a legal settlement therein, though no notice has been given. T questions, therefore, in this case are, did Garratt come to inhabit in this parish? and was he charged with, and did he pay his share towards the public taxes or levies of this parish? and upon these points there is no dou It was never contended that he did not gain a settlement upon these grounds The grounds upon which it is contended that he did not gain a settlement are, that he was not properly tenant of the cottage and land, though he cupied them, but that he occupied rather as servant to Mr. Bignell; th Mr. Bignell was to be considered as the person rated, though it was Garratt's name; that there was nothing which could properly be calle Garratt's share of the rates; and that, though he paid the rates in the fis instance, he was either reimbursed or allowed them in account by Mr. B nell. It is not necessary for us to decide whether Garratt was proper tenant of this cottage and land (though, as the occupation of this cottage a land was unconnected with, and wholly independent of, the service of Ge ratt to Bignell, there would be no difficulty in the decision), but it is necessary to decide this question; because the settlement in this case pends, not on the coming to settle on a tenement under the 13 & 14 Car.. c. 12., in which case the relation of landlord and tenant is essential, but the coming to inhabit, and being charged with and paying his share of th public taxes or levies of the parish, under the 3 W. & M. c. 11. s. 6, which case the relation of landlord and tenant is not necessary; but all th is requisite is, that the parish shall rate the party, so as to shew that the are aware that he is in the parish, and that he should pay upon such rati That the relation of landlord and tenant is not necessary in the latter cas under the 3 W. & M. c. 11, s. 6, is established by Rex v. Stapletes There the pauper lived with his mother, and was rated for a house and la she occupied. He occupied nothing in the parish himself, and yet it wa decided, that by paying such rate he gained a settlement; for the parish, rating him, had shewn that they knew he was inhabiting within the par

de

and had recognised him as an inhabitant, and by making the payment, he had performed that part of the condition the statute imposes upon the person charged, viz. paying his share. It was contended there, as it has been contended here, that as he was not occupier, no part of the rate could be called his share; but that argument was overruled. Now that case is much stronger than this; for there the person rated was not the occupier; here he clearly is. The remaining objection, that Garratt had been reimbursed the rate, is sufficiently answered by Rex v. Axmouth, which was cited in the argument. There a custom-house officer was rated for his salary to the land tax, and paid the rate, but he always either got the amount from the collector beforehand, or was repaid by him afterwards; and the collector was under orders from the treasury to reimburse the officers of his description. This was adjudged to give the officer a settlement; and Lord Ellenborough, in delivering his judgment, said, "As to his being reimbursed afterwards, all the cases agree that that makes no difference." We are therefore of opinion, that Garratt is to be considered as having been charged with and paid his share towards the public taxes of Lower Heyford, within the meaning of 3 W. & M. c. 11, s. 6, and that the decision of the sessions was right. Order of sessions confirmed.

PP. 699–703. Rex v. the Inhabitants of Yarwell, 9 Bar. and Cres. 894. Upon appeal against an order of two justices, whereby T. Ireson, his wife and children, were removed from the parish of Yarwell in the county of Northampton, to the parish of Stibbington in the county of Huntingdon; the sessions quashed the order, subject to the opinion of the Court on the following case:-The respondent proved by the pauper and his wife that the appellants had, about twenty-eight or twenty-nine years ago, and at three or four times subsequently, the last time being ten years ago, relieved the pauper and his family while they were residing in the respondent parish. When they wanted relief, they applied to the parish officers of the appellant parish for work, and as they could not find it for them, they allowed the family 12s. a week. It was the pauper's wife who applied for relief upon all those occasions except one, when the application was made by the pauper himself. He had been once examined by the appellants, and stated that he had been an apprentice in their parish. The appellants also, within the last six years, and while the pauper was resident in the respondent parish, paid the expences of his wife's confinement in a lunatic asylum at Peterborough.-Campbell and Miller in support of the order of sessions. There was, undoubtedly, evidence for the sessions to find that the pauper was settled in the appellant parish, but they were not bound so to find. Relief is no more than evidence of the opinion of parish officers that the pauper is settled in the relieving parish. They may be mistaken. The respondents might have proved the fact that a settlement had been gained in the appellant parish, and not contented themselves with giving presumptive evidence only.-Humphrey contrà. There were no premises to warrant the conclusion to which the sessions came. The only legitimate conclusion warranted by the evidence was, that the pauper was settled in the parish of Yarwell. Bayley J. The sessions have sent this case for our consideration, without telling us what question they wish to be answered. They have stated a strong primâ facie case, from which they were at liberty to draw the conclusion that the pauper was settled in the parish of Stibbington, but they were not bound to do so. It was purely a question for them. The pauper might have been examined as to the fact whether he had ever gained, or whether there was a reasonable ground to conclude that he had gained a settlement in the appellant parish by apprenticeship, or otherwise. If he was not examined as to that, the sessions may have refused to act on presumptive evidence of settlement, when the respondents might have proved a settlement actually gained by the pauper in the appellant parish.-Littledale, J. I am of the same opinion.-Parke, J. If the sessions intend to ask us whether there was a prima facie evidence of a settlement in the appellant parish, I should have answered that there was, and that they ought to have acted upon it. If they asked me whether they were bound to do so, I should answer they were not. Order of sessions confirmed.