days' residence must be found within the compass of a year; for, as observed by one of the judges, "it would be neither reasonable nor expedient that an inquiry should be gone into over a long period of time, at detached intervals, to ascertain a settlement (r); but they need not be under the same yearly hiring (s). SECTION VIII. OF SETTLEMENT BY RENTING A TENEMENT. THE acquisition of a settlement by this means has been greatly narrowed of late years. It originally grew out of the first section of 13 & 14 C. II. c. 12, which confined the power of parish officers to remove poor resident in their parishes, to the cases of persons "coming to settle in any tenement under the yearly value of 107." (t); so that a certificated person, residing for forty days in a parish while holding in his own right a tenement there of at least 101. annual value, being irremovable, might thereby acquire a settlement of this kind (u). The comprehensive terms of the above act led to such extensive claims under it, and opened so wide a field of litigation in consequence, that, in 1819, they were much contracted by 59 G. III. c. 50, which came into operation on 2nd July in that year. That act, after giving rise to some very nice distinctions, was repealed on 22nd June, 1825, and replaced by statute 6 G. IV. c. 57, which having omitted to retain one of the strict conditions imposed by 59 G. III. c. 50, was rendered more stringent by 1 W. IV. c. 18; and was again altered by 4 & 5 W. IV. c. 76, s. 66 (v). These acts are stated at length in a subsequent page, with a sketch of the numerous decisions on each; but before we proceed to consider them, it is obvious that, as questions may arise on rentings of tenements before 2nd July, 1819, a brief view of the law respecting them should be here given. The following have been the principal questions on the original act of C. II. 1. What is a "tenement" within 13 & 14 C. II. c. 12. (r) R. v. Denham, 1 M. & S. 222. See 3 B. & Adol. 813, R. v. Child Okeford. (8) R. v. Findon, 4 B. & C. 91; 6 Dowl. & Ry. 116. (t) See per Lord Denman, C. J., 5 still Ad. & Ell. 544; and Le Blanc, J., 4 M. & S. 210, post, p. 783. (u) R. v. Findern, Cald. 426; R. v. Croft, 3 B. & Ald. 171; 9 & 10 W. III. c. 11. (v) Sect. 68 of this act may also apply. 2. What taking or occupation enures as a "coming to settle" or "to inhabit" (w) under that act. 3. What is the true mode of estimating the value. 1. What is a "Tenement" within 13 & 14 C. II. c. 12.-It was determined by numerous cases, which can be only glanced at here, that tenement is a term of such comprehensive meaning, that it may extend to hereditaments incorporeal, as well as corporeal, e. g. any thing permanently attached to, or necessarily and immediately arising out of, land. This term, therefore, has been held to include rabbit warrens, even though the tenant has no direct interest in the soil, because, as was said in one case, "it was a pernancy of the profits of the land by the mouths of the rabbits” (x). So, also, a dairy of cows (y). So, also, a fishery; for as trespass will lie for it, and it may be recovered in ejectment, it must be a tenement (z). A right of common in gross; because it is matter of tenure, and a præcipe will lie for it (a). A mill, whether grinding by wind or water; for it is attached to the land (b). After-mowth; for it arises immediately out of the land (c). And in like manner, the right of taking sand or gravel from a river (d), or rushes and flags from a pond (e); a cattle gate (f); and the agistment of cows, if the contract for it be specific (g); have been holden to confer a settlement. The distinction between what is, and is not, considered as a "tenement," is clearly shown by a case, in which the use of machinery in a mill was decided not to be a tenement, the renting of which would confer a settlement, and was likened, somewhat ludicrously, to the liberty of pounding in a mortar. It is a mere chattel, removable at pleasure, and cannot have its peculiar value reckoned with the land on which it is placed (h). Both expressions are used in 13 & 14 Car. II. c. 12, s. 1. (*) Per Lord Kenyon, in R. v. Piddletrenthide, 3 T. R. 775. (y) R. v. Darley Abbey, 14 East, R. (2) R. v. Old Alresford, 1 T. R. 358. (c) R. v. Brampton, 4 T. R. 348. (d) R. v. All Saints, Derby, 5 M. & S. 90. (e) R. v. All Saints, Cambridge, 1 B. & C. 23. (f) R. v. Whixley, 1 T. R. 137; pasturage for cattle subject to repairing certain gates. (g) R. v. Sutton, St. Edmond's, 2 D. & R. 800; R. v. Hollington, 3 East, R. 713. (h) R. v. Dodderhill, 8 East, R. 449. Tolls of a bridge, where it was not part of a turnpike road, (and on that account excluded from conferring a settlement by 13 G. III. c. 84, s. 56,) were collected under an act, which even declared the tolls to be the personal property of the proprietors: and were held to confer a settlement, being a "tenement" in the possession of the person to whom they were demised (i). Tolls, however, were, in a subsequent case, said to be things which do not lie in tenure, but only in grant, and therefore, if demised by a corporation, must be granted under the corporate seal, or will not confer a settlement (j). By 54 G. III. c. 170, s. 5; 3 G. IV. c. 126, s. 51; 4 G. IV. c. 95, s. 31, gate or toll-keepers of turnpike roads or navigations, persons collecting or renting turnpike tolls or residing in turnpike toll-houses, their apprentices or servants and receivers of tolls for overweight, are excluded from gaining settlements in respect of residence in turnpike-houses, &c. (k). 2. What Taking or Occupation would enure as a "Coming to Settle."-It is not the occupation for a year, nor the payment of rent for a year, but the residence for forty days, that is the substantial ground of this settlement. The time of the forty days' residence, whether at the beginning or end of the year of occupation, is immaterial (). It is scarcely necessary to observe that a mere colourable contract for taking a tenement, entered into for the purpose of obtaining a settlement, without any bond fide transfer of possession, will be, for that object, wholly void. As to the kind of tenancy requisite, a few examples will suffice. A pauper employed as a labourer by the board of ordnance, having previously occupied a house of the rent of 71. per ann., 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 also occupied a shop (the shop and house together being at the value of 107.). On dismissal from his employment, he gave up the house as required. This last occupation of the house was held not a taking and residing as a tenant, but merely a residing as a servant, and therefore no settlement was conferred by it (m). See like decision in the case of a windmill, not affixed to the freehold, R. v. Otley (Inh.), 1 B. & Adol. 161, acted on Wansbrough v. Maton, 6 N. & M. 367. (i) R. v. Bubwith, 1 M. & S. 515. (j) R. v. Duffield, 3 M. & S. 247. (k) See R. v. St. Andrew the Less, Cambridge, 10 B. & Cr. 742. (1) See per Patteson, J., R. v. Willoughby, 4 Ad. & E. 151; S. C. 5 N. & M. 457 (on 1 W. IV. c. 18. Stated at length, post, p. 796, 797.) (m) R. v. Cheshunt, 1 B. & Ald. 473. A person engaged himself generally as waiter at an hotel in Leeds, where he had the tap, or privilege of selling malt liquors, and for the purpose of so doing had the use of a cellar belonging to the hotel, which had a separate entrance, and of which he kept the key. The annual value of the cellar was 67. and, with the profits of his place as waiter, 607. It was contended in favour of a settlement, from these circumstances, that the engagement of service ought to be presumed a hiring for a year, and that under that engagement he rented the cellar; but as the session had not drawn the conclusion of a yearly hiring, that point fell to the ground; and as to the other, it was held that there did not appear any taking of the cellar as a tenant, but the occupation of it appeared to be merely a privilege annexed to the place of waiter (n). But payment of rent and taxes by a master for a house of another occupied by a servant, does not make the occupation auxiliary to the service, and the servant is rateable accordingly (0). Whereas, taking a man's cottage to rent, which would not have been allowed by the owner, but for services of the tenant's children previously agreed for, and which were ancillary to that contract, is a sufficient renting a tenement by which to acquire a settlement, for the relation of land to the tenant existed, though the rent was deducted from the children's wages (p). A pauper agreed to become tenant of certain premises at a future. day, when the then tenant's term would have expired. The actual tenant gave him leave to put certain instruments of trade into part of the premises which had an outer door, immediately, and delivered to him the key thereof a few days after. Seven days before the expiration of the old tenancy, the pauper went into the house, with consent of the tenant, but without the knowledge of the landlord, immediately after which, and before the regular period of his tenancy to commence, his wife being taken ill, he received relief on her account from another parish, and long before he had resided forty days in the premises, was removed with his family to the relieving parish: so that it was clear he had never paid rent, he had not resided forty days, nor did he remain with the landlord's consent. On this concurrence of circumstances, Lord Ellenborough, C. J., observed, that, "till the expiration of the former occupier's tenancy, the landlord could neither put out the old tenant, nor put in a new one, and therefore there was no such occupation as could give a settlement” (q). (n) R. v. Seacroft, 2 M. & S. 473. 411. (p) Reg. v. Bishopton (Inh.), 9 Ad. & E. 24; 1 P. & D. 598, S. C. The recital in 13 & 14 C. II. c. 12, s. 1, does not import an absolute intent to settle permanently or for forty days, but applies only to persons coming to settle for a short time. Therefore, where on 1st November, 1813, a party came to reside for a month certain on a tenement of the requisite value, under an agreement to have it so long on trial, and if liked on that trial, to take it at Martinmas, at the yearly rent of 147. and having resided the trial month, took it at the rent agreed on, and without interruption in his residence continued there for a month more, he was held to have gained a settlement (r); but a residence of forty days within the year of occupation in the parish where the tenement or part of it is situate, is necessary, though at what period of the year it takes place is immaterial (s). The wife of a deserter, without her husband's knowledge, and without acknowledging that she had a husband, took a tenement, in her own name, of the value of 107. per annum. Some time after, her husband, who was a deserter, came to her to conceal himself, and resided in concealment more than forty days. It was contended that the husband residing there was an adoption of the wife's contract, and that he gained thereby a settlement. But it was held that "the animus morandi et manendi was wanting; for it would be a perversion of terms to say that a man who came purposely for concealment, came to the house in the capacity of a tenant with a design to settle” (t). But where a soldier, his regiment being in barracks in the place, took a house of the value of 107. per ann. for himself and family, and resided therein more than forty days, though always liable to be called away on duty, it was determined to be a taking, and a coming to settle, sufficient to satisfy the words of the statute, and that such residence gained a settlement (u). Although the contract may be bona fide, and the residence without dispute, yet the whole transaction may be so circumstanced, as not to satisfy the spirit of the law. Thus, E. R. had gained no settlement for herself, but her father J. W. was settled at K. In 1814 he rented a dwelling-house, cow-house, and pasturage at B. of the value of 41. and resided upon it that year. On 11th August in the same year, he bought at a public auction four lots of oats growing in a field at C. for the sum and at the value of 127. 14s. He began to reap them on 14th September, finished, and carted away the last load on the 3d of (r) See R. v. Helsham, 2 B. & Adol. 621; and per Lord Tenterden, id. 625 ; the judgment of Patteson, J., in R. v. Woolpit, 4 Ad. & E. 209. (8) R. v. Willoughby, 5 N. & M. 457. (t) R. v. Ashton-under-Lyne, 4 M. & S. 357. (u) R. v. Brighthelmstone, 1 B. & Ald. 270. |