Since Upon appeal against an order of two Justices, made on the 5th day of August 1823, for the removal of J. Asprey, pauper seems with his wife and children, from the parish of St. Botolph, removable in the town and county of Cambridge, to the parish of Ampthill, in the county of Bedford, the sessions confirmed the order, subject to the opinion of this court on the following case. when actually chargeable, although residing on a tene ment above the annual value of 10%., unless he has actually gained before the de order. nant pays 10l. he will not acquire a settle per ann. rent, ment since 39 Geo. III. c. 50., if the te nement is not of the yearly value of 10%. To acquire a settlement since that act, tenant must either pay or legally tender The pauper, a rope-maker, being previously settled, by estate, in the parish of Ampthill, came with his family to reside, in Midsummer 1822, in a house in the parish of livery of the St. Botolph; he had hired it of one Mitchell for 10l. a a year; Semblable, he put his own furniture therein, worth 15l. or 167.; he although tecontinued to live in it about a year; and in July last, being much distressed, he applied to the parish officers of St. Botolph for relief, who refused to give him any till ordered by a magistrate so to do, after being summoned to show cause. why they did not; they then gave the pauper 14s. on the 31st of July, according to such order; the tax collectors during this month had seized a box, worth 17., for a quarter's tax of 3s. in arrear, and the pauper's wife had sold some furniture; but what remained in the house at this time was worth 147., a circumstance which was not communicated to the magistrate by the overseer when the order for relief was made: the day after this relief Mitchell called for his his rent. rent of 10l., and gave the pauper a fortnight to pay it in ; soon after this, the pauper and his family were removed to Ampthill under the above order of removal; he then applied to one Sturge, an auctioneer, to buy his furniture, to enable him to pay his rent. Sturge went to Cambridge, valued it at 131. 3s. exclusive of his tools, which were worth 57., and agreed to buy them for 107.; which sum he paid to the pauper, who kept the key of the house all the time, and returned to it about the 14th of August, on which day Mitchell had sent a person to distrain for the rent; but no distress was taken, because the bailiffs, Sturge, and the pauper, went together to Mitchell, and the rent was paid by the pauper with the 10%. he received from Sturge. Another auctioneer had been employed to sell some of the furniture, under the direction and according to the inventory of Sturge, and sold it for 31. 13s.; and after this sale, the remainder of the tools and furniture might be worth 67.; without the tools, the remaining furniture might be worth 17. The sessions decided that the house was not of the value of 10%. Nolan contended, first, that the pauper was not removable from the parish of St. Botolph, even if he had not gained a settlement there, because at the time the order was made he had been residing more than forty days upon a tenement of the value of 10%.; and, secondly, that under the circumstances stated in the case, he had acquired a settlement in that parish. Upon the first point, he observed, that by the ancient law a party was irremovable, unless he came into the parish in a state of vagrancy. The statute 13 & 14 Car. II. c. 12. did not, as was sometimes supposed, enable the incomer to acquire a settlement, but gave the justices power to remove any person, within forty days after he shall come to settle in any tenement under the yearly value of 10l. Its object was rather to prevent a settlement than to give one. The subsequent statutes, 1 Jac.II. c.17. and 3W. & M. c. 11. refer to the forty days continuance in a parish in terms no further than as it was necessary "to make a settlement." They only prolong the power of removal beyond the original forty days, in cases where the party could have been removed antecedent to 13& 14 Car. II. Hence it followed, that a person might be irremovable from a parish where he could not gain a settlement. Rexv. Leeds (1), and Rex v. Martley (2), are founded upon this principle, and show that a pauper residing, either upon a leasehold tenement or his own estate, may be irremovable, although his residence does not confer a settlement. It is true that the 13 & 14 Car.II. in rendering persons removable, refers to the value of the tenement; and in this case, the sessions have found the annual value to be less than 107. But statutes which interfere with the subject's common right of choosing his place of residence, by such an arbitrary power as that of removal, are to be construed strictly, so far as they restrain an Englishman's birthright, and liberally, so far as they protect it. The 59 Geo.III. c.50. annexes the acquisition of a settlement to a bona fide taking at a rent of 10%., and payment of that rent without reference to the actual value. If the justices can investigate the value, in opposition to the rent paid, where there is no fraud, it will overturn the object of the statute, and reintroduce that uncertainty and litigation it was designed to avoid. To avoid these evils, the legislature referred to the rent paid, as the fair and conclusive criterion of the value of the premises. The finding therefore by the sessions that the rent exceeded the real value was irrelevant and impertinent; and being repugnant to their material finding as to the bonâ fide payment of rent, is to be dismissed from the court's consideration. The pauper resided on a tenement of the annual value of 10., within the meaning of the 59 Geo.III., and was irremovable. He dwelt there, and not in a state of vagrancy; and under the protection of a residence, by the possession of which he might finally become settled. He was no vagrant; he resided much more than forty days irremovable, and came neither within the letter nor the spirit of the 13&14 Car.II. It may also be urged, that he was not actually chargeable, for the case finds that he had property more than sufficient to pay his rent, and maintain himself at the time he received relief. Secondly, he gained a settlement in the parish of St. Botolph; for though at the time when the order was made he had not actually paid the rent, yet the landlord having afterwards given him time, (and it being in fact paid within the time allowed him, it must be considered as virtually paid when it became due, upon the principle that omnis ratihabitio retro trahitur et mandato æquiparatur,) he had an inchoate right to a settlement which was afterwards perfected any other construction would destroy this species of settlement. It could not be intended that to perfect the settlement, the rent must be paid the instant it becomes due. This seldom happens. Suppose the landlord is unwell, or absent, or dead, and his personal representative unknown, it would be unjust to hold that a tenant, able and willing to pay his rent, should be deprived of his settlement by any casualty in which he had no participation; or that by the voluntary forbearance of the landlord, who neither did nor could complain of neglect or omission, the tenant is to sustain the same injurious consequence. Bayley J. It is unnecessary to decide in this case, whether since the passing of the 59 Geo.III. c.50. a settlement is gained by residing on a terement for which an annual rent of 107. is payable, but the annual value of which is less. I incline to think, however, as previously to that act the statutes require that the tenement should be of the annual value of 10%, that that requisite is not superseded by the 59 G.III. c.50.; but, without pronouncing any decision upon that point, I am of opinion, that at the time when this order was made, (and the date of the order is very material,) the pauper was removable, and that he had not then gained any settlement. in the parish of St. Botolph. It is said, that although he had in fact received relief from that parish, yet, as he possessed property, he was not actually chargeable; but I think that as the parish did not act fraudulently, and as they were compelled to grant him relief by an order of justices, the pauper is to be deemed as being actually chargeable; and if so, then he was removable, though he had resided on the tenement more than forty days, under the 35 Geo.III. c. 101. It is material to consider the history of the law with respect to this power of removal. By the 13 & 14 Car. II. c. 12. upon complaint made to any justice of the peace within forty days after any person coming to settle in any tenement under the yearly value of 10., any two justices of the division where any person that is likely to be chargeable to the parish shall come to inhabit, are authorized to remove such person to such parish where he was last legally settled under that statute. Complaint must be made to a justice within forty days after the party has come to reside in the parish. The 35 Geo. 3. c. 101. recites this act and repeals so much of it, as enables justices to remove persons likely to be chargeable, and enacts, that "no poor person shall be removed from the parish where he shall be inhabiting, to the place of his last legal settle ment, until such person shall have become actually chargeable to the parish in which he shall then inhabit," and then two justices are empowered to remove such person, in the same manner, and subject to the same appeal, and with the same power as might have been done before the passing of that act, with respect to persons likely to become chargeable. Now, taking these two statutes together, I think the meaning of them is, that the statute of the 35 Geo.III. c.101. takes away altogether the power of removing within forty days persons likely to become chargeable, but gives the power to remove persons actually chargeable, at any time after they have become so, and before they have actually gained a settlement in the removing parish. I am of opinion, also, that on the fifth of August 1823, when the order of removal was made, the pauper had not acquired any settlement in the parish of St. Botolph. The statute of the 59 Geo.III. c.50. introduces new provisions with respect to the gaining of a settlement by the renting of a tenement. Before that statute, any persons renting a tenement of the annual value of 10l., and residing on it forty days, obtained a settlement; but that statute enacts, that no person shall acquire a settlement by reason of dwelling for forty days in any tenement rented by such person, unless such tenement shall be bona fide hired by such person at the sum of 10l. a-year at the least, for the term of one whole year, nor unless it shall be held, and the rent for the same actually paid for the term of one whole year at the least, by the person hiring the same. Now in this case the pauper took the tenement at Midsummer 1822, for one year; the year expired, and the rent became due and payable at the expiration of that time, and if the pauper had made a legal tender of the rent upon the premises before sunset of the last hour of the day when it became due, and had been able to show that he was always afterwards ready to pay it, possibly such a tender might have been considered in point of law as equivalent to payment; but in this case he had neither paid the rent, nor done any thing which in point of law can be considered as payment, at the time when the |
