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1824.

The KING v. The INHABITANTS of AMPTHILL.

Merely rent

ing a tenement of 10l. a year,

without actual

payment, will

not prevent

the removal

of the tenant under the 35

Geo. 3. c. 101.

if

he is actually

If a pauper,

who has the means of paying bis rent and sustaining

himself and

family by the

goods, applies to to the parish after for relief, and

the overseers

TWO Justices by their order, dated 5th August, 1823, removed J. Asprey with his wife and five children from the parish of St. Botolph, in the town and county of Cambridge, to the parish of Ampthill, in the county of Bedford. The Sessions, on appeal, confirmed the order, subject to the opinion of this court on the following case. The pauper, a rope maker, being previously settled by estate in the parish of Ampthill, came with his family chargeable. to reside, at Midsummer, 1822, in a house in the parish of St. Botolph. He had hired it of one Mitchell, for 10l. a year. He put his own furniture therein, worth 15 or 16. He continued to live in it above a year, and in July last, being much distressed, he applied to the sale of his parish officers of St. Botolph for relief, who refused give him any till ordered by a magistrate so to do, being summoned to shew cause why they did not. then gave the pauper fourteen shillings on the 31st according to such order. The tax collector during this by an order of justices to remonth had seized a bed worth 17. for a quarter's tax of lieve him, he three shillings 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, fide renting a Mitchell called for his rent of 107. and tenement at 10l. a year and a fortnight to pay it in. Soon after this, the pauper and paying the rent his family were removed to Ampthill under the above after a pauper has become chargeable will not confer a settlement under 59 Geo. 3. c. 50. Quare. Whether the justices at sessions are at liberty to inquire into the real value of a tenement where there has been a bonâ fide hiring and actual payment of a 10l. rent under the statute.

U 2

They (without fraud on their part) July, are compelled

gave the pauper

is actually chargeable and removeable if

he has not acquired a settlement.

The bonâ

1824.

The KING

v.

The

INHABITANTS

order of removal. He then applied to one Furze, an auctioneer, to buy his furniture, to enable him to pay his rent. Furze went to Cambridge, valued it at 137. 3s. (exclusive of his tools, which were worth 57.) and agreed of AMPTHILL. to buy them for 10. which sum he paid to the pauper, who kept the key of the house all the time, and returned to it about the 14th August, on which day Mitchell had sent a person to distrain for the rent; but no distress was taken, because the bailiff, Furze, and the pauper went together to Mitchell's, and the rent was paid by the pauper with the 107. he received from Furze. Another auctioneer had been employed to sell some of the furniture under the direction, and according to the inventory of Furze, and sold it for 37. 13s.; and after this sale the remainder of the furniture and the tools 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 107. and confirmed the order of removal subject to the opinion of this court, whether the pauper was liable to be removed from the parish of St. Botolph.

Storks in support of the order of Sessions. There are three questions intended to be raised on the other side; first, whether the pauper was removeable even though actually chargeable, having been resident on a tenement of 10l. a year at the time of the removal; second, whether the pauper took and rented a tenement of 107. a year within the meaning of the 59 Geo. 3. c. 50; and, third, whether it was competent for the Sessions to go into the question of value in the face of a bonâ fide contract for a tenement of 10l. a year. As to the first point, it is perfectly clear, that if the pauper did not rent a tenement within the meaning of the 59 Geo. 3. and had actually become chargeable, he was removeable by the 35 Geo. 3. c. 101. There is abundant evidence of his chargeability;

1824.

The KING ซ.

The

INHABITANTS

because he had applied to the parish officers for relief, and was relieved accordingly. There is no doubt, therefore, that he was removeable on the ground of his actual chargeability. Then secondly, did he in fact gain a settlement under the 59 Geo. 3. Merely residing on a of AMPTHILL, tenement of 107., unless he complied with the requisites of that statute, would gain him no settlement. The 59 Geo. 3. requires a bonâ fide taking of a tenement for one whole year, and the actual payment of a rent of 107. for the whole year. Now, here, the pauper had not paid a year's rent until after the order for removal was executed; and though he subsequently paid it by the sale of his effects, yet that will make no difference, inasmuch as the statute has not a retrospective operation so as to confer a settlement after the party has actually become chargeable and has been removed. Then the third point is equally clear; because although the statute declares that the hiring of a tenement for the sum of 10l. a year for one whole year, and the actual payment of the rent, shall confer a settlement, yet the legislature did not mean to preclude the Sessions from going into the question whether the tenement so held was of the actual value of 107. and of deciding against the settlement if it was found to be of less value. This, however, is a point not necessary to decide on the present occasion, it being sufficient to support the order of Sessions, that the rent agreed for was not actually paid at the time of the removal.

Nolan, contrà, insisted, first, that, assuming the pauper not to have acquired a settlement by renting the tenement in question, still he was irremoveable from the parish of St. Botolph, although he had actually become chargeable; second, that the pauper had acquired a settlement under

1824.

The KING

0.

the 59 Geo. 3. by renting a tenement, although he had not actually paid the rent until after he had become chargeable; and third, that the Sessions were precluded from going into the question of value, there having been a INHABITANTS of AMPTHILL. bonâ fide taking of the tenement at the actual rent of 10l. As to the first point; by the old settlement law, unless

The

a person came into a parish in a state of vagrancy he was irremoveable; but in consequence of the inconveniences resulting from this in practice, the statute 13 and 14 Car. 2. c. 12. was passed, which rendered persons removeable within forty days who were likely to become chargeable if they came to settle upon a tenement under the yearly value of 10l. So that by that statute if a person resided on a tenement of 10l., whether chargeable or not chargeable, he was not removeable; and if he was not removed within the forty days, though he resided on a tenement under 107. the same consequence would follow. Then followed the 35 Geo. S. which recognizes the provisions of the preceding statute, by which it is expressly provided, that the party shall not be removeable though he has not gained a settlement, unless he has actually become chargeable. The cases of Rex v. Leeds (a) and Rex v. Martley (b) are authorities founded upon the principle now contended for, and shew that during the existence of a contract for a tenement of 101. a year, a pauper is not removeable though chargeable. It is clear, therefore, that this pauper was irremoveable though chargeable. The statutes 7 Jac. 1. c. 3. and 3 W. & M. c. 11. which prevented persons from gaining settlements unless they gave notice of their coming into the parish, do not affect the question as to the removeability, and therefore this question must be (a) Burr. S. C. 524 S. C. 2 Bott. 468.

(b) 4 Burn, 534. See Rex v. Fillongly, 4 Burn, 495. Rex v. Framlington, Id. 471. and Rex v. St. Paul, Deptford, Id. 472.

1824.

The KING

0.

The INHABITANTS

considered as it would have been under the 18 and 14 Car. 2. and 35 Geo. 3. But independently of this construction of the statute this pauper cannot be considered as in a state of actual chargeability; for at the time he applied for relief he had abundance of property to satisfy of AMPTHILL. his rent and sustain himself and family; and consequently he was not removeable as a person actually chargeable, for it was the duty of the overseers to see that he was a person in want of relief. Then secondly, the pauper had in fact acquired a settlement independently of the question of his irremoveability. He had not only taken the house for a year, but he actually paid the rent within the meaning of the 59 Geo. 3. c. 50. It is true the rent was not paid until after he was removed; but still that will make no difference in the fair construction of the statute, the object of which was to prevent the fraudulent acquirement of settlements in a parish, by taking a tenement of a rent of 10l. per annum, which the party had not the means of paying. Now in this case although the pauper labored under temporary distress, still he had sufficient means of paying his rent, and in fact paid it. The landlord did not apply for his rent until the day after the relief was applied for, and then he gave the pauper fourteen days to pay it in. He paid it within the fourteen days by the sale of his effects, and therefore he was at least in the state of having an inchoate right of settlement at the time he became chargeable, which was afterwards perfected. Then thirdly, the Sessions had no right to go into the question of value. It is sufficient under this statute that there shall have been a bonâ fide taking of a tenement at the rent of 107.; and therefore the Sessions were precluded from entering into the value, unless there was any reason to suppose that there was fraud in the contract.

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