1826.

The KING

v.

CARSHALTON.

tlement according to the provisions of that act. The year's rent did not become due until the 25th September, 1825, and the statute 6 Geo. 4, passed in June, 1825. That statute only requires that the rent shall be paid for the term of one whole year at the least, and does not say that it shall be paid by the party renting the house. Here, then, as the rent was in fact paid out of the pauper's assets, though not in his lifetime, the provisions of the statute, which was in force when the rent became due, were substantially complied with.

Thesiger, contrà. It is submitted, that the order of sessions must be quashed. This, it is to be remembered, is a question of derivative settlement, and therefore, unless the pauper's husband had actually gained a settlement in the parish of Carshalton at the time of his death, the order cannot be supported. The question depends upon the construction to be given to the 59 Geo. 3, c. 50. By that statute, three things must concur, before a settlement can be gained under it by renting a tenement. First, the tenement must be of the value of 107. at the least; second, it must be occupied for one whole year; and third, there must be the payment of 107. at the least, for a year, "by the person hiring the same." The first two requisites had been complied with by the pauper's husband before his death; but not the third. Payment of the rent out of his effects after his death, is not sufficient, because it must be a payment by the person hiring the tenement. If, indeed, the distress had been made before the pauper's death, then it might be admitted, that the statute would have been substantially complied with. After his death, the effects on the premises became the property of some other person, and therefore it cannot be said that it was a payment out of the proceeds of his

1826.

The KING

v.

CARSHALTON.

goods. The question is, whether the pauper had, in fact, personally complied with all the requisites of the statute before his death. It is clear that he had not, and therefore there is an end to this as a derivative settlement. If the argument on the other side could prevail, it would come to this, that a man may gain a posthumous settlement; which would be rather a new proposition in settlement law. If the pauper did not gain the settlement before death, he did not afterwards. At the time of his death, the settlement was inchoate; and the payment of the rent out of his effects afterwards, cannot perfect the settlement by relation back to the time when he was alive. This is a much weaker case than Rex v. Ampthill (a), where, though the rent was actually paid by the pauper himself, yet, inasmuch as it was not paid until he was removed to another parish, the Court held, that still he did not gain a settlement, the rent being paid when it was too late. Then as to the second point, the effect of the 6 Geo. 4, was not absolutely to repeal the 59 Geo. 3. All that it did was to let in the old law, from the time of the repeal. If that statute were absolutely repealed, the effect would be to annul all acts done, and destroy every right acquired, under it. But assuming the argument on the other side upon this point to have any weight, still on this occasion it is wholly irrelevant, because the 6 Geo. 4, c. 57, received the royal assent on the 22nd June, three months before the rent was paid, and therefore, according to Rer v. St. Mary-le-bone (b), no settlement could be gained, inasmuch as it was incomplete at the time the statute came into operation.

ABBOTT, C. J.-I am of opinion, that the order of sessions must be quashed. The question is, whether the pauper had a derivative settlement from her husband; (a) Ante, vol. ii., 297; S. C. 4 D. & R. 447. 2 B. & C. 847. (b) 4 B. & A. 681.

1826.

The KING

V.

CARSHALTON.

or in other words, whether the husband had acquired a settlement in Carshalton at the time of his death. I think he had not, whether we consider the 59 Geo. 3, or the 6 Geo. 4, as the governing law. It is true he occupied the tenement for more than a year, but he died before the rent of 107. was paid by him, which is the language of the 59 Geo. 3; nor was there any payment of one whole year's rent, as required by the 6 Geo. 4, at the time of his death; and I think that the subsequent payment by means of the sale of his goods, is not sufficient to satisfy the requisites of that statute. Therefore, whichever statute is to be considered as the governing law, he had acquired no settlement in Carshalton, which he could communicate to his wife.

BAYLEY, J., HOLROYD, J., and LITTLE DALE, J., concurred.

Order of Sessions quashed.

Quo warranto informa

tion for usurp

ing the office of justice within the borough of

The KING V. THOMAS MUTTERSHAW HUBBALL, Esq. QUO WARRANTO information against the defendant, for usurping the office of a justice of the peace within the borough of Stafford. The plea set out a charter of 12 Jac. 1, by which that king granted, that

S. Plea, that the defendant was elected at a corporate meeting where a majority of the aldermen and capital burgesses were present. Replication, that at the supposed election, five capital burgesses (naming them) and no others, were present, and that they were not the major part of the capital burgesses. Rejoinder, that at the election, besides the five capital burgesses named in the replication, there were present K. and T., being then capital burgesses, and that the five capital burgesses named in the replication, together with K. and T., were the major part of the capital burgesses. Sur-rejoinder that K. and T., before the election of the defendant, had been elected, admitted into, and exercised the office of aldermen, and at the elec

the corporation of Stafford should consist of a mayor, ten aldermen, and ten capital burgesses; that the mayor, aldermen, and others of the common-council of the borough for the time being, or the greater part of them, of whom the mayor for the time being was to be one, should have full power to chuse and nominate within the borough two of the aldermen of the borough for the time being, to be the justices within the borough for one whole year. The plea then stated the acceptance of the charter by the corporation, and that on the charter day in 1825, the then mayor, and divers to wit, six of the aldermen, and divers, to wit, six others of the common-council of the borough, to wit, six of the capital burgesses of the borough for the time being, they being the major part of the mayor, aldermen, and capital burgesses of the borough, did, within the borough, chuse and nominate the defendant, being one of the aldermen of the borough for the time being, to be one of the justices of the peace within the borough, for one whole year then next following; and that he, after he was so nominated and chosen, took the requisite oath, and was thereupon duly admitted into, and did take upon himself, the office of justice of the peace within the borough, &c., and by that warrant exercise the office. To this plea there were several replications; but the points discussed at bar, and decided by the Court, arose upon the demurrer to the pleadings following, upon the sixth replication. That replication

1826.

The KING

บ.

HUBBALL.

tion of the defendant were present as aldermen, and that before the defendant's election two other persons were elected, and admitted as capital burgesses in the room and stead of K. and T. Rebutter, that at the election of K. and T. as aldermen of the borough, the major part of the aldermen were not assembled, and that after the election of K. and T., and before the election of the defendant as justice, and whilst K. and T. exercised the office of aldermen, quo warranto informations were filed against them, and judgment of ouster given, with a denial that K. and T. ever were aldermen :-Held, on demurrer, that K. and T. were not good capital burgesses, though they had been ousted from the office of aldermen; and judgment for the Crown.

1826.

The KING

v.

HUBBALL.

alleged, that at the supposed election of the defendant in the pleas mentioned, the following persons and no others were present, and attended as capital burgesses of the borough, viz.: J. Shaw, J. Griffin, J. Marsh, E.Worsey, and J. Rogers; and that the said persons who so attended and were present as capital burgesses at the said supposed election of the defendant, were not the major part of the capital burgesses of the borough; and this, &c. Rejoinder, that at the said election of the defendant, the said J. Shaw, J. Griffin, J. Marsh, E. Worsey, and J. Rogers, being capital burgesses of the borough, attended and were present as in the replication mentioned; and that over and above and besides the said five last-mentioned burgesses, E. Knight, and R. Turnock, being then capital burgesses of the borough, attended and were present at the same election, and that the said five capital burgesses of the borough, who so attended and were present at that election, and the said E. Knight, and R. Turnock, so then being capital burgesses of the borough, were the major part of the capital burgesses of the borough. And this, &c. Sur-rejoinder, that Knight and Turnock, before the supposed election of the defendant, were respectively elected and chosen aldermen of the borough, and had taken their corporal oath as aldermen of the borough, and had been admitted into the office of aldermen of the borough; and that Knight and Turnock had from thence hitherto exercised the office of aldermen of the borough, and at the supposed election of the defendant, attended and were present as aldermen of the borough; and that after the said election of Knight and Turnock as aldermen, as aforesaid, and before the supposed election of the defendant, two other persons, to wit, J. Hawthorn, and J. Rogers, were elected and chosen capital burgesses, and took