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and to take again when I please, and you shall pay nothing for it.” It was held that such possession, when coupled with residence, conferred a settlement; for the words of the statute are satisfied, as the party comes to reside on a tenement of the yearly value of ten pounds (1).
The master of a charity school, at a fixed salary, was Master of charemovable from this office at pleasure. He lived for
tenant at will. years rent free in the house where the preceding schoolmasters resided, which was of the annual value of 101., and let off part of the premises to the parish. This was held a sufficient occupation to give him a settlement, upon the authority of the preceding case.
66 He came to oCcupy as tenant at will, with a view to permanent residence, and that is a coming to settle upon a tenement within the meaning of the statute.” (2)
But Lord Ellenborough was of opinion, that the pur- Purchase by chase of growing-oats by auction would not confer a settle- auction. ment, although above the value of 10l., for it was not a rer:ting, or in any way a holding as tenant. (3)
These cases are to be distinguished, however, from the Residence as mere residence as a lodger, servant, &c. uncoupled with an
lodger, &c. interest (4). For if another person is the actual occupier or tenant of the premises, a mere permission to use the premises in a subordinate condition, does not confer a settlement. (5)
(1) Rex v. Fillongley, 1 Term Rep. 458. Also Rex v. Netherseal, 4 Term Rep. 258. post; Rex v. Culmstock, 6 Term Rep. 730. post, 27.(6); Rex o. Aldborough, 1 East, 597. post.
(2) Rex v. Lakenheath, 1 B. & C. 531. Verba Bayley J. Ibid.
(3) Rex v. Bowness, 4 M. & S. 210. quære tamen. The other judges decided the case upon a different ground, see post. See also Lord El. lenborough's opinion, Rex v. St. John's Glastonbury, 1 B. & A. 481. post, 28. (3).
(4) But see post, and the opinion of Lord Kenyon Ch.J., Rex v. South Lynn, 5 Term Rep. 667.
(5) Rex v. St. Michael's in Coventry, 15 East, 567. and the cases cited, post, sect. iv.,
Residence to Whatever doubts might have existed formerly, it has avoid a certifi- been recently decided, that the same construction should cate.
prevail upon the certificate act (1) as on 13 & 14 Car. II., although it uses the more precise terms, “ unless he or they shall really and bona fide take a lease of a tenement of the value of 101.,” &c. For it is obvious, that, in construing these words, reference must be had to the former statute to supply the word “yearly,” which is wanting in this statute; and in like manner, the words of the second branch of this clause, 66 Execute some annual office in such parish,” &c. have been construed with reference to 3 & 4 W. & M. c. 11. s. 6. to require the service of the office for an entire year (2). No case has been found in which the statutes received a different construction, either as to the nature of the tenement or the taking thereof; and Lord Mansfield says (3), that the two acts are to be considered together, being in pari materiá. (4)
Taking by parol.
Previous to this case, it had been decided to be sufficient if there was a taking by a parol for a year (5), or a lease at will. (6) It was doubted in one case (7), whether taking a lease by parol for seven years would confer a settlement, as being void for the whole time, by the statute of frauds. (8) But this opinion was ill-founded, for the act declares, that such leases shall have the force and effect of leases at will, which we have already seen will confer a settlement; and it has been decided, that a parol lease for more than three years enures as a tenancy from year to year, for that which was considered as a tenancy at
(1) 8 & 9 W. III. c. 11.
will, when the statute passed, has since been properly construed to enure as a tenancy from year to year. (1)
The law respecting settlements of certificated persons, Conformity under 9 & 10 W. III. c. 11., by occupying a tenement in between 13 & the certified parish, therefore conforms to the construc- certificate act. tion in all respects which the 13 & 14 Car. II. has received; and the decisions which have obtained in one of these classes of settlement, may be considered as authorites applicable to the other. (2)
In considering this species of settlement, it is necessary to examine, 1st, What is a tenement within the meaning of the act. 2d, Its value. 3d, The occupation, or coming to settle thereon. 4th, The residence. 5th, The proofs necessary to support the settlement.
Of the Kind of Tenement ; and herein of uniting tenements.
The consideration of what shall be considered a tene- Division of ment upon which a person can come to settle admits of subject. a two-fold division. 1st, What sort, or kind of things are comprehended within the term tenement. 2d, How far the tenement must be situated within the parish where the settlement is claimed, and whether two or more, when occupied together, come within the meaning of that term as applied in 13 & 14 Car. II. c. 12.
Ist, As to the several sorts, or kinds of things real, com- Tenements, prehended under the word tenement, Sir William Black-what. stone observes, that,
(1) Clayton v. Blakely, 8 Term Rep. 3. and see Doe ex dem. Rigge v. Beli, 5 Term Rep. 471.
(2) See Ivinghoe v. Stonebridge, 1 Str. 265. where the certificated man purchased an estate, post.
“ Land comprehends all things of a permanent substantial nature; being a word of very extensive signification. Tenement is a word of still greater extent, and though in its vulgar acceptation, it is only applied to houses, and other buildings, yet in its original, proper, and legal sense, it signifies any thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, liberum tenementum, frank tenement, or freehold, is applicable, not only to lands, and other solid objects, but also to offices, rents, commons, and the like: and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements.” (1)
How used in The legislature seems to have applied the word in 13 & 13 & 14 C. II. 14 Car. II. in what the learned judge just quoted, calls the
vulgar sense, and to have intended it to signify houses and buildings, in which persons could come to dwell and settle. (2)
Parts of houses.
Part of a house is a tenement in this limited sense of the word. Thus a first and second floor unfurnished, there being only one door, and one staircase (3); a shop communicating with the house, but accupied separately (4), have been held tenements. (5)
Soon obtained But the term obtained a more extended construction a more extended con
owing to the received opinion, that the ability to pay 101. struction. per annum is the foundation of the settlement, and whe
ther the party pay it for a house for his habitation, or
(1) 2 Black. Com. Book ii. chap. ii. p. 16. and see the opinion of Lord Kenyon C. J. post, 14., that “ any thing is a tenement which is a profit out of the land.”
(2) See Rex v. Hollington, 3 East, 113.
(3) Rex v. St. George's, Hanover-Square, Burr. S. C. 692.; and in Rex v. Whitechapel, a furnished room was held a tenement. 2 Bott, 100. Pl. 146. But as to the value of the furniture, see post.
(4) Rex v. St. Giles's in the Fields, Burr. S.C. 798.
any other tenement, which brings him in a profit, is not material. (1)
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 &c. 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 10l. (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 proa 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.
(3) Rex v. Butley, Burr. S. C. 107. Rex v. Knighton, 2 Term Rep. 48. post.
(4) Kinver v. Stone, ante(1).
(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.
(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. (5)