any other tenement, which brings him in a profit, is not material. (1) Water-mill, &c. It has been holden therefore, that a water-mill (2) Tenements and a wind-mill, although it had no place of resi- within the act dence (3), are tenements which confer a settlement. So also a rabbit-warren, with a cottage upon it (4), although the tenant have no right in the soil of the warren, except that of entering upon, and killing the rabbits there (5), is a tenement. So a land-sale colliery, i.e. not the mine only, but the Land-sale stock of horses, gins, ropes, and other things necessary for colliery. working, is a tenement within the statute, provided the mine, and engines affixed to the soil, are of the annual value of 101. (6) So are the tolls of a market (7) or of a bridge (8), as also tithes (9). And not only land (10) but Limited a limited interest in its profits are tenements; such is the fits in land. grass and aftermath of a meadow, taken for ten months (11). The fogs, or after-grass of a field, taken without specification of the time in which they are to be uplifted; these give a settlement if occupied forty days. (12) (1) Kinver v. Stone, 1 Str. 678. (2) Evelyn v. Rentcomb, 2 Salk. 536. (3) Rex v. Butley, Burr. S. C. 107. Rex v. Knighton, 2 Term Rep. 48. post. (4) Kinver v. Stone, ante (1). (5) Rex v. Piddletrenthide, 3 Term Rep. 772. (6) Rex v. North Bedburn, Cald. 452. (7) Rex v. Chipping Norton, 5 East, 239. where the court inclined strongly to the opinion on the authority of Lord Coke, Co. Lit. 19. b. Webb's case, 8 Co 466. The opinion of Lord Kenyon, Rex v. Piddletrenthide, 3 Term Rep. 755. (8) Although the act by which they are created makes the shares of the proprietor's personal estate. Rex v. Bubwith, 1 M. & S. 514. (9) Rex v. Skingle, 1 Str. 100. Powell v. Bull, Com. Rep. 267. (10) Rex v. Shenstone, Burr. S. C. 474. (11) Rex v. Stoke, 2 Term Rep. 451. (12) Rex v. Brampton, 4 Term Rep. 348. But this was once doubted; see Rex v. Minchinghampton, 2 Str. 874.; and the opinion of Wright J., Rex v. Lockerley, Burr. S. C. 318: also of Lord Ellenborough C. J., Rex v. Bowness, ante, 5. (3) pro Fishing of a pond, &c. Where a party held under a parol agreement the fishing of a pond, with the grates, &c. also all the spear, sedge, flags, and rushes, growing in, and about the said pond; "he held a tenement, for the court will consider, that the fishery and soil passed together." Buller, J. The fact of letting a fishery is sufficient, and we must although the presume, that the soil passed along with it: though I am soil don't pass. by no means ready to allow, that if it had been any other kind of fishery, it would not have given a settlement. (1) Rushes of a pond. Cattle-gate, &c. Tenement must be of a permanent nature. Master of job So also the right under a subsisting parol contract for two ponds, or the rushes and flags growing therein, which he was to have the exclusive right of cutting at his pleasure, is a tenement within the act. (2) A cattle-gate in a stinted pasture is a tenement, for it passes by lease and release, and cannot be devised but by the statute of frauds (3): As is the going of so many head of cattle in a certain common, for it is a common gross, which is a matter of tenure. Lord Coke says, that a præcipe will lie for it. (4) in But as a tenement must be of a permanent nature, doubts have arisen whether particular lettings, although connected with the profits of land, were not rather contracts for the occupation of personal chattels, than a demise of the produce of land. John Small contracted with the pauper's father to supply horses renting him S. with a pair of coach horses for a quarter of a his employer. year at 221., and the father contracted with Small for a a stable from stable belonging to Small, and was to pay 21. 10s. a quarter for it, Small reserving a separate stable for his own use. At the latter end of the fifth quarter, Small threatened (1) Rex v. Old Alresford, 1 Term Rep. 358. to discharge him, but, on the importunity of friends, agreed that he should continue to furnish him with the pair of horses at 207. only, having the like quarterly allowance for the use of his stables as before. They acted under this contract for several years, till the pauper's father's died: who, during the whole time, rented and lived in a tenement of 61. a-year in the parish, but was never rated either for the house or stables. It was contended that this was not an independent contract for the stables, but a deduction from the price of the job-horses, on account of their standing in Small's own stables; and that no rent would be payable when the job was at an end. But the court, after taking time to consider, thought the agreement, though awkwardly penned, was a contract for the stable. Mr. J. Aston. There can be no doubt but that it is a good renting; suppose the master had paid the servant his whole wages, might not he have brought an action for the occupation and use of the stable? (1) M. covenanted with E. to let and demise to him for a Renting a year, a dairy consisting of sixteen cows, with the dwellingdairy. house, and feeding for the said cows on twenty-one acres of clover ground, and thirteen acres of meadow land, with the after-leaze of a mead; also the run of the yard and arshes belonging to the farm, for feeding pigs, and the run of a horse with the cows. Also to allow him the sherl wheat arising from the corn growing on the farm, and provide for the cattle, when wanted, five tons of hay, and cause ten acres of the clover and thirteen of the meadow to be laid up at Candlemas, and the other eleven acres of clover at Lady-day: to put the house in repair, &c.; and if any of the cows shall not calve before the first of May, the landlord to allow two shillings per week out of the rent for each cow until she is delivered, and what is reasonable for every calf wanting. The tenant to pay 31. 5s. for every cow. (1) Rex v. St. Margaret, Fish-Street-Hill, Burr, S. C. 677. As to the occupation of servants, see post, sect. iv. The court were of opinion, that this was not a tenement within the statute. "It is only an agreement for the use of the cows, and the feeding of them; and it is merely personal. Here is no interest in the land that passes, or was intended to pass." (1) But this decision was at first questioned, and has since been over-ruled. The pauper rented in Chaldon Herring a dairy of thirty cows, some at 57. 10s. and others at 5l. a cow, with liberty to cut furze on parts of the farm for the use of the dairy only, and a warren to kill rabbits for his profit, called Grange warren, and a small house on it to keep nets in the same parish, of the same man, at 30l. per annum. The cows were to feed on particular grounds, at particular seasons of the year, as is usual in the letting of dairies. The pauper and his man sometimes slept in the house in Grange warren. The pauper had no right in the soil of the warren, except that of entering upon, and killing rabbits there; the person of whom he rented the warren constantly depasturing the same, and ploughing some part thereof. Lord Kenyon, C. J. If we were now called upon for the first time to make a decision upon this statute, perhaps I should have some difficulty on the subject; but the courts have put a liberal construction on it. I cannot quite agree with the determination of Rex v. Lockerly, because, after it had been decided in so many cases, that an incorporeal hereditament would give a settlement, I should have thought that that case would have received a different determination. But without considering that case, I think that the pauper took a tenement in Chaldon Herring, both by renting the dairy and the warren. Lord Coke says, that prima onsura is a tenement; then the dairy was a tenement; the other taking was also sufficient; for it was, if I may use the expression, a pernancy of the profits of (1) Rex v. Lockerley, Burr. S. C. 315. absent Lee C.J. the land, by the mouths of the rabbits. A free warren is the subject of a family settlement; a præcipe will lie for it, and the renting of it is sufficient to give a settlement. (1) And in a later case, Rex v. Lockerly was expressly over- Renting a ruled. The pauper rented of Chapman, under a verbal dairy, &c. agreement, twenty cows (being part of the stock of his by parol. farm), at 31. 10s. a cow per annum. It was also agreed, as is usual in such contracts in the county of Dorset, that the owner of the cows should feed and support them; and for the purpose of doing so in the best manner, that such cows should depasture in certain lands, called the Cow Leeze Grounds, from May-day to the 18th of September, and after that time in certain meadow grounds, which are kept for that purpose, from the time they are mowed; and when the pasture of the meadow grounds was consumed, that the cows should be kept by Chapman in some other of the farm grounds, with the other cattle, or be foddered in the farm-yard with hay by him. The land called the Cow Leeze was to be laid up by Chapman at Lady-day, and not fed upon by any cattle whatsoever until May-day. Chapman was not to feed any other cattle, either in the Cow Leeze, or meadow grounds, whilst the same were fed by the cows rented by the pauper; but the hay of the meadow grounds was taken by Chapman, and the Cow Leeze ground fed by him after the cows had quitted it. If any cow did not calve before May-day, or died, or became barren, or sick, an allowance was to be made. The pauper was not bound to repair any fence in any ground in which the cows were fed. It was further agreed, that the pauper should have a dwelling-house, and a right of feeding a mare on the farm, keeping his pigs in the yard, and cutting fuel for the use of the dairy; but he had no other right whatever. The contract continued in force five years, during which time the pauper resided in the said said house on the farm. Lord Kenyon, Ch. J. It being impossible to distinguish this case from Rex v. (1) Rex v. Piddletrenthide, 3 Term Rep. 772. |
