was taken for tenant to Lord Sefton of the whole premises in Maghull, and secured to His Lordship the rent thereof for the year 1778, by the joint bond of the pauper and the said Wignall. Wignall also received from Linford one year's rent for the cottage, distrained upon her for another, and the third year she had no goods to distrain on. The pauper, after he had by an artifice got Wignall from home, without his consent, entered upon the said land, which was then in Wignall's occupation; and was by Wignall, after his return home, found mowing the same. But Wignall's wife being the pauper's sister, she begged of her husband not to stop the pauper from mowing out the same; wherefore he let the pauper reap the hay; and the pauper held the land much more than forty days, whilst he resided on the cottage which he took from William Wood. But the pauper, after he returned to Maghull, never received any rent of the cottage occupied by Linford, she not considering the pauper to have any right to demand the rent from her. The pauper, in the year 1780, paid Lord Sefton's agent 31. 3s. in part of the rent for 1780, which the agent demanded from him; being glad to receive the rent from whomsoever he could, though he considered Golbourne as getting fraudulent possession; and the pauper and Wignall entered into a joint security together to Lord Sefton for the residue of the rent for the year 1780, which was never paid. Lord Mansfield C. J. The circumstances of this case are very peculiar. They never did occur before, and probably never will again, and can never be an authority. It is put on this ground, that the original lease, which was no more than a lease at will, has, by assignment, been vacated; and that it must be shown, that it has been renewed by a fresh demise, or a settlement was not gained at Maghull. It might be difficult to shew, that any new lease was granted: but was the old lease vacated? I am of opinion it was not. Throughout, Lord Sefton considers the pauper as his tenant, and he continued liable for the rent. In 1785, several years after the assignment, he is in pos session; and His Lordship accepts rent from him, and takes security from him for the rent in a bond, in which he is joined by another person. This, with the other circumstances attending it, i. e. the pauper's being at that time in possession, and the acceptance of rent from him, shews that Lord Sefton retained him as tenant, and certainly does not afford, as was attempted, any ground of argument on the other side. Buller J. There is a seeming contradiction between Lord Sefton's conduct, as collected from all the other facts in the case, and the fact stated, that the assignee was taken as by tenant His Lordship; but there is one way of reconciling it. Lord Sefton agreed to the occupation by the assignees, and received rent from him, but did not mean to give up the pauper as tenant. His meaning was, to have them both liable. (1) Forty days' residence. Must reside in the parish where his tenement is. SECT. V. Of the Residence. In order to gain a settlement by occupying a tenement of 101. per annum, there must be a residence of forty days, either on the premises, or at least in the parish where some part of them lie. (2) The pauper rented a farm in K. at 30l. per annum, and resided from Lady-day 1779 to Christmas 1781, when he went with his wife publicly to reside with his son-in-law in T. taking with him all his furniture, and the stock remaining on his farm at K. He resided with his son-in-law in T. upwards of forty days, before he delivered up possession of the farm in K., but he did not hire or occupy any land whatever in T. He gained no settlement by the residence in T. Buller J. It is taken for granted in all (1) Rex v. Maghull, Cald. 429. (2) Per Ashhurst J., Rex v. Knighton, 2 Term Rep. 48. the cases, that the pauper must reside in some part of the parish in which his property lies; and I think it is expressly laid down in the case of Ryslip and Harrow (1), that the residence must be connected with the occupation. (2) So where the pauper rented a windmill in one parish, and resided together with his wife and servant along with his father-in-law in another, but neither rented nor occupied a tenement there, he gained no settlement where he resided. (3) But it is enough, if he dwell where part of the tenement lies (4); he need not reside upon any part of what he takes. (5) Need not be on the premises. (1) 2 Salk. 524. (2) Rex v. Topcroft, Cald. 478. See also Rex v. St. Giles in the Fields, Cald. 481. n. (c). Rex v. Butley, Burr. S. C. 109. ; which was a question of residence, where the settlement was claimed by estate. (5) Rex v. Knighton, 2 Term Rep. 48. (4) Rex v. Fritwell, ante 40. (1). (5) Per Aston J. Rex v. Llandverras, Burr. S. C. 572. and there are many other authorities to the same point, of which several are cited n. (c). Rex v. Bardwell, 2 B. & C. 163. Some observations are reported to have fallen from two learned judges in Rex v. Bardwell, 2 B. & C. 163., which militate against this position; and the following case appears in some degree inconsistent with it. C., when leaving his mansion house, agreed with the pauper to take care of his garden, and for so doing he was allowed to take the issues and profits of part of it, and to live in a contiguous cottage of the yearly value of 41.; pauper to continue for a year, unless some other person should previously occupy the mansion, &c., when he was to deliver up the garden. It was held, that as he resided in a tenement not his own, but had the garden as a servant, he gained no settlement; for to do so he must have a residence which might be called his own as a tenant, and where he resides in the character of servant merely, that would not be sufficient so satisfy the words of the statute, "coming to settle," Rex v. Shepdham, 3 D. & R. 384. But the point came afterwards before the court, in Rex v. Benniworth, East. 5 Geo. IV., ante, 18., when the court, after taking time to consider, held that where the pauper resided in a cottage as a servant, but had, as part of his wages, the keep of two heifers on his master's farm, which was of the annual value of 10l., he thereby acquired a settlement. Must reside forty days. A previous re- reside forty days. prevents a settlement. It is absolutely necessary, however, that the party should A pauper got possession privately moval by force, from the tenant, of a tenement of the yearly value of 107. 10s. After residing in it twenty-nine days, he was forcibly removed, with his family, by the original landlord, aided by some of the parishioners and the overseers of the poor of the parish, and was thereby prevented from residing forty days: he gained no settlement, the residence being insufficient. (1) Residence in The pauper took a tenement at 15l. per annum in St. prison in another parish, Martin's five days after he took possession he was arthough te- rested, and carried to a prison in another parish, but his nant's family reside on the family continued to reside in the tenement for two months, premises, gains the husband remaining in prison. Neither he nor his no settlement. family were settled in St. Martin's, for "no settlement is gained by a residence for a shorter period than forty days. (2) Residence as a wife cannot The pauper must also stand in the relation of tenant to the property during the forty days' residence. A wife therefore cannot acquire a settlement by residence in her husband's life-time, on a tenement taken by him (3); or by her without his privity (4); neither can her residence, as such, be coupled with subsequent residence as a widow. The pauper hired a house 23d October 1792, entered connect with into possession with his wife and children on the following that as a widow day, and resided till his death, 8th November, 1792. to confer a The wife and children continued to reside until 11th December 1792, when she paid up half a quarter's rent, settlement. (1) Rex v. Llambedergoch, 7 Term Rep. 105. No fraud being found, the court would not enter into that question, as it is a fact which must be expressly stated by the sessions, and cannot be inferred by the court. (2) Rex v. St. George the Martyr, 7 Term Rep. 466. See also Rex. Dilwyn, Burr. S. C. 54. But if a Fleet-prisoner rent a house of 251. per ann. within the rules, and live in it, he gains a settlement. St. Margaret's Westminster v. St. Martin's Ludgate, 2 Str. 914. But see post, chap. xxvii., and 54 Geo. III. c. 170. s. 4. ante, 30. (5) Rex v. St. George the Martyr, 7 Term Rep. 466. and quitted possession. She gained no settlement by the residence for the residence of the husband cannot be coupled with that of the widow, because they were in distinct rights. (1) And if it is considered as a new taking by the widow, there must be a residence of forty days after she has obtained credit for the tenement (2), whereas she resided only thirty-three days after her husband's death. (3) when tene We have seen, that residence must be in the parish in Residence which the tenement lies. But if the party has a tenement, ments in differor tenements, of sufficient value, situated in different ent parishes, parishes, and has resided in both, he is settled where he slept the last night of his occupation, provided he has slept there forty nights in all. And it makes no difference that the tenement in that parish is of the lesser value (4), or only an occasional residence taken for a particular purpose, and that the party's regular home, and the residence of his family, is in the other parish. (5) The pauper took a farm in the parish of C. for nine years at 261. 5s. payable on the 1st of July. It was agreed he should enter on the arable on the 14th of February, and on the dwelling-house and the rest of the premises on the 13th of May following. He accordingly entered into possession of the land, which was above the annual value of 10l., between the 14th February and the 8th of May, repaired the fences, ploughed, and did other acts of spring husbandry. Soon after he agreed with the tenant in possession of the dwelling-house, to take him to board at 1s. a day while he was husbanding the land, and he slept there, at intervals, sixteen nights before the 6th of May, (1) Per Ashhurst J. (2) Per Lawrence J. Ib. (3) Rex v. South Lynn, 5 Term Rep. 664. (4) Gratwich v. Shenstone, Burr. S. C. 474. Rex v. St. Mary, Lambeth. 8 Term Rep. 240. (5) Rex v. St. Mary, Lambeth, supra (4). As to the alternate residence of servants, and of apprentices, see vol. i. |
