A 
 
 TREATISE of the LAWS 
 
 RELIEF AND SETTLEMENT 
 
 (#/< 
 
 OF THE 
 
 poop. 
 
 i . i r * ' * # i « • 4 i 
 
 By MICHAEL NOLAN, 
 
 ©t Lincoln’s inn, esq. barrister at law. 
 
 THE THIRD EDITION, 
 
 WITH CONSIDERABLE ADDITIONS. 
 
 7A r THREE VOLUMES. 
 
 VOL. I. 
 
 LONDON: 
 
 PRINTED BY A. STRAHAN, 
 
 LAW-TRINTER TO THE KING’S MOST EXCELLENT MAJESTY; 
 
 FOR J. BUTTERWORTH AND SON, LAW-BOOKSELLERS, 
 
 FLEET- STREET. 
 
 1814. 
 
 
 

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ADVERTISEMENT 
 
 TO 
 
 THE THIRD EDITION. 
 
 HE Author has endeavoured to render this 
 
 work less unworthy of the favourable re¬ 
 ception it has obtained from the profession and 
 the public, than it has been in former editions. 
 The alterations and additions which are now 
 made have so much encreased its size, that it 
 was found advisable to separate the Appendix 
 of statutes into an additional volume. Owing 
 to these circumstances it became impossible to 
 preserve the paging of the last edition, which 
 was anxiously desired. The friendship of 
 Messrs. Maule and Selwyn has enabled the 
 author to insert all the judicial decisions upon 
 his subject, from their valuable manuscripts, 
 including those of the last term. A few which 
 he did not receive in time to incorporate with 
 the work, will be found prefixed to the first 
 volume. 
 
 5. King’s Bench Walk, Inner Temple, 
 
 December 28th, 1813. 
 

 
 
 
 
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ADVERTISEMENT 
 
 TO 
 
 THE FIRST EDITION. 
 
 importance of that system of our laws. 
 
 which respects the civil oeconomy and com¬ 
 forts of the poor is so obvious, that it is hoped 
 an attempt to offer some facilities to persons 
 concerned in the administration of them, will 
 be received with indulgence. 
 
 For this purpose it has been thought con¬ 
 venient, instead of giving the numerous cases on 
 every branch of the subject, to reduce the sub¬ 
 stance of the decisions into the form of a treatise. 
 The words of the judgment of the court are pre¬ 
 served as much as possible, but it is disentangled 
 from those circumstances of an individual 
 nature, which could be of no use in illustrating 
 the principle upon which the determination is 
 founded. When, however, a more minute state¬ 
 ment of the case seemed necessary, it has been 
 given in the language of the report. 
 
 The presentwork differs, not onlyin its outline, 
 from those of Dr. Burn, and Mr. Const, but also 
 
 A 3 
 
 m 
 
ADVERTISEMENT. 
 
 
 in its general arrangement; and it will be found 
 to treat of some subjects, which are either 
 omitted altogether, or but slightly touched upon 
 in those valuable productions. 
 
 The object has been not only to unfold the 
 theory and doctrine of the law, but to supply in 
 some degree the want of personal experience, 
 by pointing out the manner in which that theory 
 is to be applied in practice. The mode of proof, 
 necessary to establish the different kinds of set¬ 
 tlement, is set forth with some minuteness; and 
 such a general statement is given of the manner 
 of conducting appeals before courts of quarter 
 sessions, as is consistent with the various rules 
 of practice, which are different in different 
 courts. An account is likewise added of the 
 practice on the crown side of the court of King’s 
 Bench, as it respects the orders of magistrates 
 removed thither by certiorari. 
 
ADVERTISEMENT 
 
 TO 
 
 THE SECOND EDITION. 
 
 HE present Edition will be found to vary 
 
 from the former in the following particulars. 
 The arrangement in some parts of the work has 
 been changed, with a view to a more perspicuous 
 exposition of the subject. A considerable por¬ 
 tion of new matter has been introduced, includ¬ 
 ing a chapter upon acquiring a settlement By 
 paying Parochial Taxes. The style and lan¬ 
 guage of the work has been altered in various 
 places, while the index has been enlarged consi¬ 
 derably, and the collection of statutes in the ap¬ 
 pendix rendered more complete. 
 
 Such cases as have been judicially decided 
 since the original publication of the work, have 
 been inserted in their proper places, except 
 the determinations of last Michaelmas Term, 
 which are prefixed to the first volume. They are 
 taken from a manuscript copy of Mr. East’s 
 notes, with which he kindly furnished the au¬ 
 thor, and are appropriated by suitable references 
 to those parts of the book under which they 
 should be arranged. 
 
 5. Kind’s Bench Walk, Inner Temple, 
 
 Dec. 18. 1807. 
 
 A 4 
 

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 ' 
 
 
 
 
 
CONTENTS 
 
 OF 
 
 THE FIRST VOLUME. 
 
 CHAPTER I. 
 
 Of the Manner of providing for the Poor previous to 
 the Statute 43 Eliz. cap. 2. ■— — 
 
 CHAPTER II. 
 
 ,_^ _ j 
 
 Of the local Divisions by which the Poor are to be 
 maintained — — — -— 
 
 CHAPTER II. — Part II. 
 
 Of appointing Overseers, and their Duties — 
 
 Of the Poor’s Pate. 
 CHAPTER III. 
 
 4 • • \ 
 
 Of making, allowing, and publishing the Rate — 
 
 f 1 
 
 \ 
 
 CHAPTER IV. 
 
 Of the Time for which the Rate is to be made — 
 
 Fgge 
 
 i to 6 ' 
 
 7~39 
 
 40 — 56 
 
 57 — 60 
 
 61 — 62 
 CHAP- 
 
CONTENTS. 
 
 s 
 
 
 
 CHAPTER V. 
 
 i 
 
 Of the general Purposes to which the Rate is to he 
 
 Page 
 
 61 
 
 66 
 
 CHAPTER VI. 
 
 Of Persons and Property to be rated — — 
 
 Sect. I. Of rating Land , Houses , and Profits 
 annexed thereto —- — — 
 
 Sect. II. Incorporeal Hereditaments per se 
 Sect. III. Tithes — — — 
 
 Sect. IV. Coal Mines and Fossils — 
 
 Sect. V. Saleable Underwoods — — 
 
 67 — 71 
 
 7 1 — 7 8 
 
 78 - 124 
 
 125 - 127 
 
 127 — I3I 
 
 * 3 * — 1 35 
 
 CHAPTER VII. 
 
 Of Property exempted by particular Statutes — 136 — 141 
 
 CHAPTER VIII. 
 
 Of the Rate ability of personal Property — 14 2 — 146 
 
 CHAPTER IX. 
 
 Of the rateable Occupier of real Property — — 147 
 
 Sect. I. Of the Occupation — — 147 — 157 
 
 Sect. II. Of the beneficial Occupation — 157 — 175 
 Sect. III. Of the Occupation of personal 
 
 Property to render it rateable — — 175 — 17! 
 
 CHAPTER X. 
 
 Of Rating double — — —■ — 179 — 181 
 
 CHAPTER XI. 
 
 Property , in what Place rateable 
 
 1 
 
 *82 — 191 
 CHAP- 
 
CONTENTS. 
 
 xi 
 
 CHAPTER XII. 
 
 Pag* 
 
 Of the Principles upon , and the Proportions in which 
 
 the Rate is to he made — — 192 —■ 2Q9 
 
 CHAPTER XIII. 
 
 Of rating Parishes in Aid — — — 210 — 220 
 
 CHAPTER XIV. 
 
 Of levying and distraining for the Poor's Rate 
 
 221 — 235 
 
 CHAPTER XV. 
 
 Of asccrt aining what Poor the Parish are hound 
 
 to maintain — *— —- 236 
 
 Origin and History of the Law of Scotland 236 — 251 
 
 CHAPTER XVI. 
 
 Of the several Kinds of Settlements f and general 
 
 Rules which govern them — — 252 
 
 257 
 
 CHAPTER XVII. 
 
 Sect. I. Of Settlement by Marriage — 258 — 259 
 
 Sect. II. Of the Proofs necessary to establish 
 
 a Settlement by Marriage — — 260 — 273 
 
 CHAPTER XVIII. 
 
 Of the Settlement of legitimate Children by Birth 275 — 2S5 
 Sect. II. Proofs necessary to support this 
 
 Settlement — — — — 286 — 287 
 
 CHAP- 
 
CONTENTS. 
 
 xu 
 
 CHAPTER XIX. 
 
 • i - , v . * • ■ 
 
 Of the Settlement of illegitimate Children by Birth - 
 Sect. I. Of the Settlement — — 288 
 
 Sect. II. Of the Proofs ^ — — 292 
 
 CHAPTER XX. 
 
 Of Settlement by Hiring and Service — 299 
 
 Sect. I. Division of the Subject — 299 
 
 Sect. II. What Persons are capable of ac¬ 
 quiring a Settlement by Hiring and Service 301 
 Sect. III. Of the Contract of Hiring — 3°3 
 
 Sect. IV.— Part I. Of the Year's Service 341 
 
 Sect. IV. —Part II. Of connecting Services 
 
 under several Hirings — — 399 
 
 Sect. IV. —Part. III. Of Service with dif¬ 
 ferent Blasters — —- — 413 
 
 Sect. V. Of the Residence by, and Place in, 
 
 which a Settlement is gained — / 418 
 
 Sect. VI. Of the Proofs necessary to support 
 
 this Settlement — — ~ 432 
 
 CHAPTER XXI. 
 
 Of Settlement by apprenticeship — — 
 
 Sect. I. Division of the Subject, and general 
 Rules respecting it — — — 
 
 Sect. II. Of the binding necessary to gain a 
 Settlement by apprenticeship — — 
 
 Part II. Of the Distinction between imperfect 
 
 Contracts of Apprenticeship, and Contracts 
 of Hiring and Service — — 
 
 Sect. III. Of discharging the Apprentice from 
 his Indenture — — — 
 
 446 
 
 446 
 
 449 
 
 474 
 
 488 
 
 Page 
 
 — 202 
 
 — 298 
 
 — 445 
 
 — 3° l 
 
 — 3°3 
 
 — 34 l 
 
 — 398 
 
 — 413 
 
 — 418 
 
 — 43 2 
 445 
 
 — 550 
 
 — 448 
 
 “ 474 
 
 — 488 
 
 — 505 
 Sect. 
 
CONTENTS. 
 
 Xlll 
 
 Sect. IV. Of the Service —- — 506 
 
 Sect. V. Of the Residence by, and Place in, 
 
 •which an apprentice acquires a Settlement 521 
 Sect. VI. Of the Proofs necessary to establish 
 
 a Settlement by Apprenticeship — 530 
 
 CHAPTER XXII. 
 
 Of Settlement by serving an Office. 
 
 Sect. L Of the Kind of Office — — 551 
 
 Sect. II. Of the Election, Service, and Resi¬ 
 dence — — — — 558 
 
 Sect. III. Of the Proofs necessary to establish 
 
 this Settlement — — — 563 
 
 Page 
 
 — 521 
 
 — 530 
 
 — 55 ° 
 
 — 558 
 
 — 3 
 - 566 
 
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XT 
 
 INDEX 
 
 o r 
 
 THE NAMES OF CASES 
 
 CITED IN THE FIRST VOLUME. 
 
 A Page 
 
 Adams v. Arnold, 442 
 
 1.. Ker, 531,532,534 
 Albrighton v. Skipton, 52 
 Allesbrook v. Roach, 533 
 Alsop v. Bowtrell, 297 
 
 Alton <v. Elvetham, 424, 425 
 Amherst (Lord) Somers 
 (Lord), 15:3, 167, 226 
 Anthony «u. Cardigan, 302 
 Appotens v . Dunswell, 258, 
 
 259, 444 
 
 Ashburton v. Woodland, 440 
 Ashcroft «n. Bertles, 499 
 Ashley’s Case, 49 
 
 Atkins v. Davis, 69, 73, 80, 
 81, 82, 84,88,93, 129,130, 
 131, 142, 143, 157, 158, 
 
 i77> 182 
 
 Attorney-General v. Le Mer¬ 
 chant, 543 
 
 ‘ v . Parker, 68 
 
 Aubrey y. Fisher, 134, 135 
 Ayr v. Smallpiece, 154 
 
 B Page 
 
 Balcetti v. Serrani, 534 
 Ballis and Church v. At¬ 
 torney General, 546 
 
 Banbury v. Broughton, 285, 
 
 290 
 
 Barber’s Case, 41 
 
 Barber v. Dennis, 508 
 
 Barnes v. Trompowsky, 531 
 Barnford v. Baron, 231 
 
 Bartlet v. Gawler, 543 
 
 Basset v. Basset, 540 
 
 Battye v. Gresley and others, 
 
 5 1 ’ 457 
 
 Baxter v. Burfield, 509 
 
 v. Faulam, 4 6! 
 
 Baylis v. Attorney- General, 
 
 546 
 
 Beaumont v. Fell, 546 
 
 Bell Oakley, 233 
 
 Bentley v. Cooke, 269 
 
 Berkhampstead v. St. Mary, 
 North Church, 258, 276 
 Berryman v . Wise, 535 
 
 Birt 
 
 \ 
 
XVI 
 
 INDEX OF CASES. 
 
 Page Page 
 
 Birt v. Barlow, 268 Cates qui tam v. Winter, 543 
 
 Bisham v. Cook, 552. 556 Catten v. Berwick, 40,41 
 Bishop’s Hatfieldu. St.Peter’s, Cawthorne v. Campbell, 47 
 
 j.14 Chamberlain v. Porter, 457 
 
 Bisset v. Caldwell, 233 
 
 Blurton v. Toon, 532 
 
 Bolton v. Gladstone, 497 
 Boreham v. Waltham, 290 
 Brazier’s Case, 436 
 
 Breton v. Cope, 531 
 
 Bridewell v. Clerkenweli, 9 
 Brightwell v. Westhally, 401 
 Brookbank v. Woodley, 533 
 Brown’s Case, 244 
 
 Brune v. Rawlings, 533 
 Buckley v. Smith, 531 
 
 Buckrow’s Case, 539 
 
 Bugden v. Ampthill, 278. 
 
 282 
 
 Bunting’s Case, 497 
 
 Burclear v. Eastwoodhay, 16 
 Burdon v. Ricketts, 445 
 Burleigh v. Stubbs, 544 
 
 Bute (Lord) v. Grindall, 39. 
 70. 79. 82. 85. 147. 150. 
 155. 181. 169. 173. 179. 
 
 157. 205. 226 
 Butler v. Cobbet, 58 
 
 C 
 
 Caistor v. Eccles, 509 
 
 Carey «u. Pitt, 533 
 
 Case v. Stephens, 67 
 
 Case of the Borough of War¬ 
 wick, 54 
 
 Case of Parish of St. Peter’s 
 and St. Paul’s, 214, 215 
 Case of the Overseers of 
 Weobly, 49 
 
 Case of St. Rumbald’s Parish, 
 
 214, 215 
 
 Case of the Borough of Marl¬ 
 borough, 215,216 
 
 Case of Chesterfield, 451 
 Case of the Flad Oyen, 497 
 12 
 
 v. Staunton, 534 
 Chariwood v. Best, 227 
 
 Cheney’s Case, 546 
 
 Chettle v. Pound, 538 
 
 Chesham v Missenden, 304 
 Chichester v. Phillips, 497 
 Chilmerton and Flagg, 35 
 Clavely v. Burton, 285 
 
 Clerk v. Heath, 539 
 
 v. Wright, 298 
 
 Clerkenweli v. Bridewell, 419. 
 
 522 
 
 Clifton t>. Churcham, 10 
 v. Walmsley, 546 
 Cobbet v. St. Mary, Lincoln, 
 
 59.216 
 
 Coghlan v. Williamson, 531 
 Coker v. Guy, 546 
 
 Cold Ashton v. Woodchester, 
 
 557 
 
 Collins v. Jessot, 272 
 
 Cook v. Sholl, 497 
 
 Cooke v. Hundredors of Pirn- 
 hill, 11 
 
 Coombe <n.Westwoodhay,318. 
 
 3 21 
 
 Cox v. Whalley, 440 
 
 Coxwell v. Shillingford, 274 
 
 Cripplegate *u. St. Saviour’s, 
 
 287 
 
 Crompton v. Bearcroft, 266 
 
 Cross v. Salter, 273 
 
 Cuerden v. Leland, 461 
 
 Cunliffe v. Sefton, 532 
 
 Cunmer Milton, 274 
 
 D 
 
 Dacosta v. Pym, 533, 534 
 
 v. Villa Real, 273 
 
 Daniel v. Cooke, 264 
 
 Davis, Ex parte, 499 
 
 Davis 
 
INDEX OF GASES. 
 
 Page 
 
 Davis v. Din woody, 269 
 Dawson v. Fowle, 40 
 
 Deacon v. Cock, 439 
 
 Dean v. Linton 9. 248 
 
 Denn v. Spray, 488 
 
 Ditton’s Case, 495, 496 
 
 Doe ex dem. Freeland v. Burt, 
 
 546 
 
 Doe on the dem. of Small v. 
 
 Allen, 548 
 
 Dolting v. Stokelane, 9, 10, 
 11. 13. 16. 38 
 Duchess of Kingston’s Case, 
 270. 273. 497 
 Duhamel’s Case, 496 
 
 Duke of Portland’s Case, 
 
 169 
 
 Dumbelton v. Beckford, 278 
 Dunsford v. Ridgwick, 317 
 Durrant v. Boys, 62. 205 
 
 E 
 
 Earby, Sir Anthony’s Case, 
 67, 68. 70. 82 
 Eardisland v. Leominster, 401. 
 
 4*4 
 
 East India Company u. Skin¬ 
 ner, 221. 232 
 
 Eastland v. Westhorsley, 363 
 Eastwoodhey v. Westwood- 
 hey, 282 
 
 Eocleston «d. Speke, 544 
 Eckersall <0. Briggs, 85. 88. 
 
 153. 167 
 
 Eddington v. Borman, 137 
 Edgecomb v. Sparks, 232 
 Edwards v. Harben, 231 
 Edwin v. Thomas, 488 
 
 Elsing v. County of Hereford, 
 
 29° 
 
 « 
 
 F 
 
 Fachina v. Sabine, 436 
 
 Farr v. Price, 457 
 
 VOL. 1. 
 
 Page 
 
 Farringdon v. Witty, 301. 
 
 , ^ 427 
 
 Fassel’s Case, 11 
 
 Fasset v. Brown, 531 
 
 Ferrers (Lord) v. Sbirlev, 
 
 _ , _ 532,533 
 
 Feversham <u. Graveney, 423 
 Filmer v. Gott, 548 
 
 Fettleworth v. Pullborough, 
 
 5 Ji.Jj 8 . 5 S 9 
 
 Fletcher v. Ingram, 54 
 
 •v. Wilkins, 230 
 Fotheringham v. Greenwood, 
 
 438 
 
 Foxcraft’s Case, 296 
 
 Freeland v. Burt, 546 
 
 G 
 
 Ganer v. Lady Lanesborough, 
 
 273. 298 
 
 Gatton v. Milwich, 552. 556. 
 
 557 
 
 Gaudy’s Case, 268 
 
 Gill, ex parte, 488 
 
 Godfrey v. Norris, 532 
 
 Goodier v. Lake, 540 
 
 Goodtitle v. Branam, 533 
 Gordon’s (Col.) Case, 535. 
 
 543 
 
 v. Falkner, 231, 232 
 * v . Secretan, 538 
 Goring v. Moltsvvorth, 423 
 Gorton v. Falkner, 231, 232 
 Goslin v. Hardin, 185 
 
 Goss v. Tracey, 532 
 
 Gould v. Arthur, 126 
 
 v. Jones, 532 
 
 Green v. Proud, 12 
 
 Greenaway v. Earl of Kent, 
 
 J 35 
 
 Greenwich v. Longdon, 421 
 Gregory Stoke u. Pitminster, 
 
 305 - 3 11 
 
 Grellier v. Neale, 531. 534 
 Grendon v. Underwood, 125 
 a Grey 
 
 Xvii 
 
xviii 
 
 t 
 
 INDEX OF CASES. 
 
 
 Page 
 
 Grey v. Cookson, 453. 
 
 492. 
 
 499. 504. 508 
 
 Grim wade v. Stephens, 
 
 292 
 
 Guevas •v . Ivelynac, 
 
 126 
 
 Gunnis «u. Erhart, 
 
 54s 
 
 H 
 
 
 Hampton v. Lammas, 
 
 228 
 
 Hanmcre v. Ellesmere, 
 
 401 
 
 Hands *u. James, 
 
 534 
 
 Hard’s Case, 
 
 277 
 
 Hardingham v . Brisley, 
 
 240. 
 
 
 246 
 
 Hardwell v. Jerman, 
 
 44 2 
 
 Harper v.■ Carr, 224. 
 
 2 26, 
 
 
 227 
 
 Harrow v. Edgeware, 
 
 2 54 
 
 Havelock v. Rockwood, 
 
 . 497 
 
 Harvey’s Case 
 
 497 
 
 Hart v. Horn, 
 
 44 1 
 
 Hawkswortii v. Hilary, 
 
 493 - 
 
 
 495 
 
 Haydon v. Gould, 
 
 272 
 
 Hearne v. Drake, 
 
 5 ° 9 
 
 Helsington v. Over, 556, 557 
 
 Henley ^..Chesham, 
 
 269 
 
 Herlakenden’s Case, 
 
 132 
 
 Hilton v. P.awle, 
 
 S. 37 
 
 Holefurd'U. Copeland,88.107. 
 
 167, 168. 172 
 
 Holland v. Heale, 
 
 l8C 
 
 Hoilidge’s Case, 
 
 08 
 
 Holmes v. Ponten, 
 
 53 i 
 
 Holt «y. Ward, 272 
 
 • 3 °* 
 
 Holy Trinity v. Garsir 
 
 igton, 
 
 400. 552.556.559 
 
 r o. Shoreditch, 
 
 5°9 
 
 Hooper * v• Carr, 
 
 37 
 
 Horner *0 Liddtard, 
 
 266 
 
 Horsham v. Shipley, 
 
 3*7 
 
 Howard v. Shipley, 
 
 43 & 
 
 Hubbard v. Penrice, 
 
 40 
 
 Hull’s Case, j 
 
 jS 82 
 
 Hume v. Burton, 
 
 273 
 
 Hutchins v. Chamlnrs 
 
 , 220. 
 
 2 3 2 > 2 33 > 2 34 
 
 I Page 
 
 Ilderton v. Ilderton, 266 
 
 J 
 
 Jeffrey's Case, 68 
 
 Jenkin’s Case, 215 
 
 Jones v. Bow, 497 
 
 v. Mason, 532 
 
 v. Maunsell, 79,80, 8 1 . 
 ’• 150. l 53- 173* 
 
 205. 226 
 1?. Newman, 546 
 
 K 
 
 Kemp <d. Spence, 75. 79. 136. 
 
 196. 198. 
 
 Kenward v. Knowles, 48 
 
 Kidd *v. Raw! in son, 23 I 
 
 Kingston's (Duchess of). 
 
 Case, 270. 273, 497 
 
 Lane . Cobbam, -30. 39 
 
 1. apthorne’s Case, 13^ 
 
 Leader v. Barry, 268. 270 
 Lee v. Ganstd, 437 
 
 Leith <v. Post, - 338 
 
 Ley field’s (Dr.) Case, 540 
 Liddlestoii'y. Mayor of Exeter, 
 
 1 1. 38 
 
 Lifford Robert’s Case, 132 
 Llandverras v. Northop, 38 
 Lomax v. Holmden, 296 
 Lothian v. Henderson, 497 
 Lothsome v. Sheriff hales, 8. 
 
 j6p 
 
 Low v. Burdon, 124 
 
 Lowess v. Lan'stephen, 422 
 Lowndes v. Horne, 82. 127. 
 
 136 
 
 Lynch v . Cterk, 540 
 
 M. epherioa 
 
INDEX OF CASES. 
 
 XXI 
 
 Page 
 
 Pendrel v. Pendrel, 295 
 Pel 5 dock v. Mackinder, 137 
 Pepperharrow v. Frenchman, 
 
 318 
 
 Peterborough (Lord) v. Mor¬ 
 dant, 540 
 
 Philips v. Hunter, 266 
 
 Poole, Sir William’s, Case, 
 
 544 
 
 Pordage’s Case, 47,48 
 
 Portland’s Case, (Duke of) 
 
 169 
 
 Powell v. Ball, 127 
 
 v. Blacket, 531 
 
 Price v. Blackbourn, 531, 532 
 Priestly v. Hughes, 266 
 Pritchard Symonds, 540. 
 
 Prudham v. Phillips, 
 
 Q 
 
 Queen v. Barking, 
 
 543 
 
 497 
 
 73 
 
 M Page 
 
 Macpherson v. Thoytes, 533 
 Manby v. Scott, 273 
 
 Marsh v. Col nett, 538 
 
 Master v. Miller, 509 
 
 Masters v. Child, 289 
 
 Mather v. Neigh, 267 
 
 May v. May, 297 
 
 Meddlicott v. Joyner, 540 
 Melville’s ( Lord) Case, 440 
 Meres v. Ansell, 546, 547 
 
 Milward v. Caffin, 147. 226. 
 
 228 
 
 Missenden v. Chesham, 424 
 v. Grimsfield, 257. 
 
 5 2 3 
 
 Monroe v. Twistleton, 438 
 Moorewood v. Wood, 533 
 Moy se v . Cocksedge, 2 3 2,2 3 3, 
 
 234 
 
 Much Waltham v. Peram,290 
 
 N 
 
 Negus <v. Reynal, 540 
 
 Newbury v. St. Mary’s, 451 
 Newton v Young, 228 
 
 Nicholas v. Elliott, 185 
 c u. Walker, 8. 226 
 Notton v. Royston, 513 
 
 Nutting V. Jackson 224 
 
 O 
 
 Ormichund v. Barker, 436 
 
 OsbouVn v. Hosier, 533 
 
 P 
 
 Parish of Hardingham v* Pa¬ 
 rish of Brisley, 240. 246 
 
 Parke v. Meares, 531 
 
 Passal v. Gcdsal, 536 
 
 Patchett v. Bancroft, 228 
 Povvlet «y. Burnham, 306.367. 
 
 3 8 9 
 
 Peart v . Westgarth, 16. 18. 
 
 23 * 35* S7> 3 8 * 226 
 
 R 
 
 Ra'dwell’s Case, 297 
 
 Rann v. Pickings, 1 $6 
 
 Ratclilfe e v. Chaplin, 488 
 Raymond v. Botolph’s, Aid- 
 gate, 47 
 
 Regina v. Barking, 133 
 
 Clifton 274 
 
 Grey, 290 
 
 Icleford, 290 
 
 Rutter, 495 
 
 Searlc, 50. 52 
 Thursley, 502.510 
 Reid v. Passer, 269. 272 
 Roach v. Garvan, 270. 273 
 Robinson v. Dryborough,457 
 Robson v. Hyde, 163 
 
 Rowls v. Gells, 74. 82, 83, 
 87. 128. 131. 155. 158. 
 
 169.179 
 
 Rudd’s Case, 438 
 
 a 2 Rudd 
 
 N 
 
XX 
 
 INDEX OF CASES, 
 
 Page 
 
 Rudd v. Foster, 9.39.226 
 Morton, 12 
 
 Rex v. —-, 83 
 
 Rex v. Aberavon, 80. 149. 
 
 J 73 
 
 Abergwiliy, 444 
 
 Aberystwith, 148 
 
 Ackley, 318 
 
 Adson, 320. 414 
 Agar, 158. 160. 163, 
 164. 174. 193. 202. 
 
 205 
 
 Aides, 509 
 
 Aire and Calder Navi¬ 
 gation, 60. 74. 80. 
 95. 12 1. 186. 
 Alberbury, 82. 129. 
 
 158.179 
 Alberton, 295 
 
 Allendale, ' 302 
 
 All Cannings,552.556 
 All Saints, Hereford, 
 476.488 
 All Saints, Derby, 45. 
 
 435-455 
 Alton, 370. 404. 480 
 
 Alveley, 388 
 
 Arr.bleside, 145. 176 
 Amies, 495. 497 
 Andover, 67, 68. 144. 
 
 176.189 
 Anon, 59 
 
 Arlington, 340. 350 
 Arnold, 49 
 
 Ashton Underhill,420 
 Astley, 289 
 
 Asthon, 420 
 
 Atherton, 322,323 
 Atkins, 58 
 
 Audley, 57. 192. 207 
 Austrey, 499, 500. 
 
 512 518 
 Aynho, 400 
 
 ' Aythrop Rooding,24C. 
 
 254. 258 
 
 Rex v. Badby, 453-544 
 Bag worth, 401 
 
 Bank Newton, 302.321 
 
 Page 
 
 Rex v. Baptist Mill Company, 
 74. 84. 86 . 129. 
 
 p . .. 'S'* J S 5 
 
 Barking, 144. 179 
 
 Barmby in the Marsh, 
 526.529 
 Barnsley, Addend. 
 
 XXXV. 
 
 Barnstable, 58. 207 
 Barrat, 60 
 
 Bartholomew, Corn^ 
 
 hill, 357 
 
 Bartholomew’s Hos¬ 
 pital, 160 
 
 Bartlett, ifo 
 
 Barton Tusse, 
 
 Bath Easton, 305.324. 
 
 423 
 
 Bath, (Corporation) 
 68. 74 183, 184 
 Beccles, 353 .4 t 7 
 Bedall, 272. 295. 298 
 Bedworth, 159.204 
 Beeding, otherwise 
 Seal, 23. 27. 36. 78 
 Beeston, 55 
 
 Bell, 75.80.174 
 Bcnn, 223,224,225 
 Berk swell, 270 
 
 Berwick St. John, 326 
 Besland, 46 
 
 Bid worth, 127 
 
 Bilton, 445. 534 
 
 Binegar, 270 
 
 Birdbrooke, 232 
 ‘Birmingham,305. 328. 
 
 33< 5 - l 33 8 - 35 8 > 359- 
 480 
 
 Bishops Hatfield, 338 
 Borough Fen, 211. 
 214,215,216. 223 
 
 Bow 320. 553-557 
 Bradford, 466. 473 
 Bradninch, 331. 508. 
 
 516. 521 
 Brad stone, 507.514 
 Bramley, 269.297,298 
 
 Rex 
 
 1 
 
INDEX OF CASES. 
 
 XXI 
 
 Page 
 
 Rex v. Brampton* 267. 272. 
 
 388.392.394 
 Bray, 349 
 
 Bridgewater (Over¬ 
 seers) 51. 54 
 
 Brighthelmstone, 420. 
 
 422. 523,524 
 Bright well, 414 
 
 Broadhembury, 285 
 Brograve, 79. 193.206 
 Brown, 129. 147.156. 
 
 180,181.294 
 Buckington, 498, 499 
 Buckiand Denham, 
 
 337 - 4 8 ° 
 
 Bucklebury, 287 
 
 Burbach, 487, 488 
 Burder, 38. 50 
 
 Burton Bradstock,525 
 Bury, 443 
 
 Butler, 36. 40. 43. 51. 
 
 208 
 
 Rex v, Canterbury, 144. 146. 
 
 176, 177. 189. 194 
 Cardington, 80,81.92. 
 
 182.187 
 Carlton, 259 
 
 Carlyon, 83, 84. 122. 
 126, 127. 142. 145. 
 
 185.190 
 Carsham, 381 
 
 Castle Church, 382 
 Castell Careinion, 438 
 Castleton, 525, 526. 
 
 ^ 541-543 
 
 Cator, 533 
 
 Catt, 126. 152. 161. 
 
 164 
 
 Caverswall, 371.405 
 Chadderton, 444 
 Channel, 5C9 
 
 Chalbury, 453, 454 
 Chardstock, 41.44. 47 
 Charles, 496. 505,506. 
 ' 524. 526,527 
 
 , Chertsey, 304 
 
 Page 
 
 Rex v. Chester, 498 
 
 Chichester, 63, 64 
 Chidingstone, 258 
 Chilviger, 269 
 
 Chipping W arden,447. 
 
 5°3 
 
 Chirck, 507. 512,513. 
 
 529 
 
 Christ Church, 360 
 Christowe, 520,521 
 Churchwardens of An¬ 
 dover, 67, 68, &c. 
 Cirencester, 522, 523 
 Clapham,,. 500. 507. 
 
 5 10 
 
 Clapp, 68. 122 
 
 Clare, 329. 333 
 
 Clarendon Park, 211 
 Clayhydon, 381 
 
 Clayton L,e Moore, 
 
 445 - 543 
 
 Clent, 301 
 
 Clerkenwell, 51. 141. 
 
 192 
 
 Clift by don, 522 
 
 Clifton, 45, 46. 455 
 Clifton upon Duns- 
 more, 468 
 
 Cliviger, 279 
 
 Collingbourn,28o.493 
 Collinson, 146. 191 
 Coltishall, 480 
 
 Corsham, 345. 381. 
 
 39 8 
 
 Count de Castlemain, 
 
 437 
 
 Co whoneybourne, 2 84. 
 
 3°3 307 
 Cozens, 222, 223. 225 
 Crediton, 507. 512. 
 
 5,8 
 
 Creech, 286 
 
 Creech St. Michael's, 
 
 443 
 
 Cromford, 451.477 
 Crosby, 438 
 
 a 3 Rex 
 
xxn 
 
 INDEX OF CASES. 
 
 Rex v. 
 
 Rex v. 
 
 Rex v. 
 
 { 1 N 
 
 Page 
 
 Croscombe, 399.401. 
 
 407.426/42 7.435 
 Cunningham, 127,128." 
 
 13 1 
 
 Dalton, 535 
 
 Darlington, 176. 193. 
 
 285 
 
 Davis, 494, 495, 496 
 Dedham, 328. 330. 
 
 335 
 
 Denham, 11, 12, 13. 
 
 15.38.45.415.431 
 Ditchingham, 450. 
 
 454. 461 
 Donnovan, 153 
 
 Dunton, 313 
 
 Dursley, 175,176,177. 
 
 193,194 
 Eakring,498,499.5:12, 
 
 5'3 
 
 East Bridgeford, 507. 
 
 5 ° 9 - 5 1 3 
 East Church, 214.218 
 
 East Ilsley, 424 
 
 East Kennct, 381.397 
 East Knoyle, 540. 544 
 East Shefford, 345. 
 
 „ 350 
 
 Eaton, 348 
 
 Eccieston, 475. 483. 
 
 488 
 
 Ecclesal, 500 
 
 Edgeworth, 280 
 Edmonton, 264. 269 
 Edwards, 58, 59. 259. 
 
 . " 437 
 
 Eldersley, 304. 424 
 
 Elhs, 74. 8 [ 
 
 Ellisfield, 406 
 
 Elstack, 304.328, 329 
 Eltham, 259 
 
 Empingham, 339 
 Eriswell, 442. 444 
 Erith, 293.444 
 
 Essex (Inhab.) 63 
 Evered, 453. 490 
 Evenon, 278 
 
 Page 
 
 Rex v. Eyeford, 13, 14. 35. 
 
 , 47 
 
 Eyles, 152, 153, 154 
 Eyre, 117. 174 
 
 Rex v. Fairfax.^ 70 
 
 Ferry Fry stone, 444 
 Field, 152 
 
 Fifehead, Magdalen, 
 399. 406 
 Fillongley, 388 
 
 Flag, 15 
 
 Fleet, 453 
 
 Fisher, 52 
 
 Folly, 59 
 
 Foreign of Walsall, 
 
 34 - 3 6 
 
 Forrest, 44. 50. 52.59 
 Fremington, 508. 510. 
 
 521. 523 
 I'riendsbury, 423 
 Frome Selwood, 366 
 Furness, 493 
 
 Rex v. Gainsborough, 453. 
 
 455 - 5 2 3 
 
 Garden, 65 
 
 Gardner, 68. 147.154. 
 
 162. 196. 204, 205 
 Gately, 4S8 
 
 Gayer, 47.53 
 
 Gibbs, 82 
 
 'Gill, 494,495.499 
 Gisburn, 439 
 
 Gloucester (Mayor), 
 61.63.65 
 Goodcheap, 65 
 
 Goodneston, 351 
 Governors of St. Mary 
 Magdalen,Bermond¬ 
 sey, 439 
 
 Gralton, 14 
 
 Grantham, 341. 350. 
 
 $% i . 391.397. 4 oj 
 Great Bookham, 301. 
 
 4 2 3 
 
 Great Chilton, 369, 
 401; 411. 428 
 
 Rex 
 
INDEX OF CASES. 
 
 XXill 
 
 -■ . Page 
 
 Rex v. Great Marlow, 36 50. 
 
 _ . 52,54 
 
 Greenwich, 443 
 
 Grendon Underwood, 
 
 314.346. 378. 4^ 
 
 Gresham, ' 371 
 
 Grey, Jane, 290 
 
 Gully* 438- 
 
 Rex v. Haddenham, 277 
 
 Hales, 307. 325. 435 
 
 Hales Owen, 496, 497 
 
 Halifax, 280 
 
 Hammond, 532 
 
 Hampreston, 329. 332 
 
 Hamstall Redware, 59. 
 
 TT 
 
 lianburv, 30!. 332. 
 
 347- 364- 3<H 
 
 Ilarherton, 260. 500, 
 
 501,502 
 Hardingham, 363.388 
 Hardhorn, 344. 363. 
 370.398. 416 
 
 Hardy, 
 
 Hannan, 
 
 Harpy r, 
 
 Harris, 
 
 Harwood, 
 
 Haughton, 
 
 Hcadcorn, 
 
 Heath, 
 
 Heaton, 
 
 Hedsor, 2 1 
 Helling, . 50 
 
 Hensmgham, 302. 307 
 Iiighnam, 458. 477, 
 478. 480.488. 547 
 Hill, 
 
 Hilton, 
 
 Hinchley, 
 Hindringham, 499. 
 
 5°5 
 
 llinxwortlr, 271 
 
 144 
 
 288 
 
 455 
 
 " Page 
 
 Rex v. Hitcham,3<s?5-314.475 
 Hoddesden," 321 
 Hodnett, 264.272 
 Hogg, 77 142. 144, 
 145, 146, 147 
 Holbeach, 211. 2 1 \. 
 
 2 19 
 
 Holbeck, 530 
 
 Holbeck in Leeds, 457. 
 
 530 
 
 Holy Trinity in Ware- 
 ham, 307 . 433.443 
 Holy T unity in tlie 
 • Minorics, 500. 508. 
 
 511. 514. 517. 520, 
 521 
 
 Hope Mansell, 552 
 Horton, Sir Watts, ? 2. 
 
 17. 26,27 35. 36 
 Horwiek, 336. 341 
 Houlditc’n, 49. 54 ' 
 Howard, 146 188.191 
 Hull Dock Company, 
 
 281. 283. 
 
 , ' 
 
 ,. 136. 166 
 
 440, 441 
 
 Holland, 
 
 4.2-2 • 
 
 207 
 
 Hurdis, 153 
 
 170.173.- 
 
 45 - 54 
 
 
 1 75 . 
 
 54 
 
 Rex v. Iclefo'rd, 
 
 290 ^ 
 
 4 1 , 42 
 
 Ideford, 
 
 5 11 
 
 319,320 
 
 Ham, 
 
 321 
 
 3 T 7 
 
 Ilminster, 
 
 554 ‘ 
 
 270 
 
 Ingworth, 
 
 277 
 
 494 > 495 ’ 
 
 I psley, 
 
 288 • 
 
 496 
 
 Is'ip, 321. 
 
 348. 360,‘ 
 
 282 
 
 
 tfi- 364 
 
 286 
 
 Iveston, 
 
 422 
 
 Ivinghoe, 372.417 
 Johnson, 494. 496 
 Jolliffe, 80. 150 
 
 Jones, 38. 50. 71. 142. 
 
 145, 146. 174. 189 
 Justices of Bedford- 
 shi*e, • 10. 15 
 
 Justices of Devonshire, 
 • 502 
 
 Justices of Dorchester, 
 
 59 
 
 a 4 Rex 
 
XXIV 
 
 INDEX OF CASES. 
 
 Rex 
 
 rru 
 
 Rex 
 
 2 S 
 
 Rex 
 
 Page 
 
 v. Justices of Glocester, 
 
 37 - M 
 Justices of Middlesex, 
 
 10. 16, 17. 36. 224 
 Justices of Peterbo¬ 
 rough, 12.15. 35 
 v. Kea, 298 
 
 Kempson, 295 
 
 Kenilworth, 388. 396 
 Keynsham, 461 
 
 Kilderby, 440 
 
 King’sNorton^oi .338 
 King’s Pyon, 386. 400 
 Kingsweare, 476 
 Kings win ford, 337’3 3 8 
 Kirdford, 439, 440 
 Kirkby Stephen,34.540 
 Knightly, 214,215 
 Kynaston, 59 
 
 v • Ladock, 416. 424 
 Laindon, 448. 475. 
 
 478.481. 547 
 Lakenham, 207 
 
 Lambeth, 125,126 
 Landillow, 63,64.151. 
 
 *55 
 
 Langamarch, 107 
 Langhem, 498. 500. 
 
 508. 510 
 Lanvair, 457 
 
 Leeds and Liverpool 
 Canal Company, 77. 
 138. 186.187 
 Leigh, 26, 27, 28. 35. 
 
 . 3 8 - 27 i * 374 - 3 8 7 - 
 Leighton, 466. 506 
 Lidney, 322 
 
 Little Bolton, 305. 
 475. 481, 482. 488. 
 
 544 
 
 Little Glen, 215, 216. 
 
 219 
 
 JJttle Lumley, 439 
 Littleport, 61 
 
 Liverpool, 71. 146. 
 191, 194. 552. 556, 
 
 557-559 
 
 Page 
 
 Rex v. Llanvair Dyffryn,457, 
 
 458 
 
 London (Mayor), 68. 
 
 73. 80. 155, 186 
 Long Buckby, 545 
 Long Whatton, 307. 
 
 3 2 5 - 434 
 Long Wittenham, 276. 
 
 285 
 
 Loxdale 45. 49 
 
 Lowther, 3 17 
 
 J^ubbenham, 270 
 Luckington, 274 
 Luffe, 294,295,296, 
 297, 298 
 Luffington 472 
 
 Lyth 307. 311. 323 
 
 434 - 44 ? 
 
 Rex v Macclesfield, 304. 306. 
 
 315. 337 
 Macdonald (Sir A.) 
 
 74 81. t 19.177 
 Maddington, 347. 360 
 Maidstone, 295, 296. 
 
 345 - 3 68 * 375 
 Margram, 450. 476 
 
 Marlborough, 388 
 Martham, 338. 481. 
 
 488 
 
 Marton, 321 
 
 Mast, T44, 145, 176. 
 196, 197, 198. 
 
 209 
 
 Mathews, 68.153. 169, 
 170. j73 
 Mathon, 288, 289 
 Mawnam, 450 
 
 Melborne, 55 y 
 
 Mellingham, 450 
 Merchant and Allen, 
 5 L 52 
 
 Merevall, ye 
 
 Merfield, 132. 202 
 Mersham, 553, 554. 
 Metheringham, 540. 
 
 544 
 
 Mickle field, 63 
 
 Rex 
 
INDEX OF CASES. 
 
 XXkV 
 
 \~j ' Page 
 
 Rex v. Middlezoy, 531. 535, 
 536. 540.544- 
 Mildenhall, 344. 355. 
 
 370 
 
 Milland, 211, 212 
 
 Miller, 73 
 
 Milwich, 306. 3S2 
 Minchin Hampton, 79. 
 
 Mitcham, 329 
 
 Moore, 47 
 
 Morris, 11.35.45,46. 
 
 49 
 
 Mortlake, 278 
 
 Munday and others, 
 154. 162. 173 
 Mursley, 306. 318,319 
 Rex v. Navestock, 329 
 
 Nether Heyford, 354 
 Nettleborough, 392 
 Newcombe, 60. 226 
 Newell, 16,17.22. 25. 
 
 38. 192 
 New Forest, 303 
 Newstead, 320 
 
 Newton, 318 
 
 Newton Toney, 271. 
 
 329 
 
 New Windsor, 322. 
 
 326,327 
 Nicholson, 78. 81.107. 
 
 121.184 
 North Basham, 366, 
 
 3 6 7-3 8 4 
 North Bedburn, 542 
 
 North Cray, 395 
 
 North Owram, 462 
 
 North Nibley, 337 
 
 Northfield, 263 
 
 Norton, 303,304 
 Notton, 500 
 
 Nuneham Courtney, 
 
 xoshrL >' : 444 
 
 Nuttley, 1 443 
 
 ’ ‘ Nympsheld, 301. 423 
 
 Rex v. Odiham, 330 
 
 OfFchurch, 279 
 
 Offerton, 511.518 
 Oulton, 27 6 
 
 Page 
 
 Rex «u. Over, 339, 340 
 
 Overnorton, 307. 326. 
 
 328, 369.411 
 Overton, 400,401 
 Ozleworth, 360.388 
 Rex*y. Page, 74. 80. 98. 121. 
 
 186 
 
 Palmer, 29. 33. 37 
 Pardy, 38 
 
 Parrot, 89. 127. 147. 
 
 158,159 
 Pateman, 47 
 
 Paulsperry, 276 
 
 Pearce, 543 
 
 Peck, 498 
 
 Pendleton, 308. 434. 
 
 53 1 
 
 Percival, 217. 219 
 Peterborough, .12. 14. 
 
 59 
 
 Petham, 509 
 
 Piddletrenthide, 181. 
 
 499,502.515. 524 
 Ponsea, 442. 463.488 
 Potter Heigham, 361, 
 362. 366 
 Preston, 263,264. 362. 
 
 367 
 
 Price, 49 
 
 Priddle, 437 
 
 Prosser, 439 
 
 Prowsc, 47 
 
 Pucklechurch, 325. 
 
 3 j8 > 3 2 9>33°- 
 Rex v. Ramham, 475 -479 
 Reading, 298 
 
 Rebowe, 79. 90. 187 
 Reily, 438 
 
 Ribchester, Addend, 
 
 xxxi. 
 
 Rice, 40. 42 
 
 Richmond, 356 
 
 Rickinghall, Inferior, 
 
 3 ° 4 * 3 12 
 Ringwood, 145, 146. 
 
 175. 190 
 Roach, 278. 282, 283, 
 
 284 
 
 Rex 
 
XXVI 
 
 INDEX OF CASES. 
 
 
 
 Page 
 
 Rex i. Rochdale, 74. 185 
 Rochester (Bishopof), 
 79. 84.86 179 
 Rodd, 145 
 
 Ronton Abbey, t 3,14, 
 15,16.35 
 Ross, 371 
 
 Rotherhithe, 64 
 
 Ivudgelv, 271 
 
 RufFord, 10. 55 
 
 Rushall, 304.316. 345. 
 
 381 
 
 Rusholme, 339. 359 
 Ryton, 260. 538 
 Rex v. Salisbury, 213 
 
 Saltern, 452.456. 437. 
 
 
 * c 
 i 
 
 535 
 
 Salter’s Sluice Naviga¬ 
 tion, 68. 74. 165 
 
 548 
 52°.523, 
 524 
 206. 208 
 
 *37 
 
 Samborn, 
 
 Sandford, 
 
 Sandwich, 
 
 Scott, 
 
 Scammonden, 548 
 Sculcoates, 74. 165 
 Seagrave, 368.380 
 Searle, 50,51 
 
 Seaton and Beer, 307. 
 
 3 28 * 33 1 
 
 Sellers, 209 
 
 Severn and Arnold, 11. 
 
 16.49 
 
 Seammonden, 540 
 Shalfleet, 144. 145. 
 
 1 93,*94 
 
 Sharrington, 360, 361. 
 
 425 
 
 Shebbear, 500. 504. 
 
 508.51 1.5 15 
 Sheepshead, 498.507, 
 
 508 
 
 Sherborne, 144* 176 
 Sherringbrooke, 49 
 Shinfield, 304. 314. 
 
 370.483,484.488 
 Showier and Atter, 10 
 Silchester, 270 
 
 Page 
 
 Rex v. Silton, 277 
 
 Simpson, 42 
 
 Skingle, 7 26 136.197 
 Skiplam, 320 
 
 Smith, 259 
 
 Smerden,510.525.529 
 South Lynn, 258 439 
 Southwai'k, 147. 157 
 Sowerby, 278. 284 
 .Sowton 241 
 
 Sparrow, 44. 49, 50. 
 
 5 2 - 55 
 
 Spawnton, 499, 500 
 Spitalfields, 288 
 
 Spotland, 524, 525 
 
 Rex*n. St. Agnes, 74 84.128. 
 
 155.304.358 
 St. Andrew’s, Hol- 
 born, 359. 419. 4.21. 
 
 428 
 
 Rex v. St.Bartholomew’s Hos¬ 
 pital, 160 
 
 Bartholomew’s,Corn- 
 hill, 357 
 
 Botolph’s, Bishops- 
 gate, 248.256.259. 
 
 458 
 
 Botolph’s, 275 
 Bride’s, 295 
 
 Rex v. St. Devereux, 269.272 
 Rex v. St. Ebbs, 322 
 
 Rex v. St. George, 49.62 
 George’s, Hano¬ 
 ver Square, 508, 
 509,510 523.52 6 
 George,Middlesex, 
 
 *39 
 
 Giles, 41 r 
 
 Giles in the Fields, 
 276 
 
 Giles, Reading, 
 307. 427 
 
 Rex v. Sr. Helen’s, Worces¬ 
 ter, 211.215 
 Helen’s,Stor.egate, 
 5 ! 2. 5 r8 
 Helen’s, 530 
 Rex 
 
 / 
 
 I 
 
 pf 
 
, Page 
 
 ‘Rex v . St. Helen’s, 216. 542 
 Rex v. St. James, in Bury St. 
 
 Edmonds, 425 
 John’s, Madder- 
 market, 141, 142. 
 
 188.190 
 
 Rex v. St. Lawrence, Win¬ 
 chester, 440 
 
 Luke’s, 147. 160. 
 
 196.204 
 Luke’s Hospital, 
 
 *53 
 
 Rex i>. St, Margaret’s, Lin¬ 
 coln, 451,452 
 Margaret’vS, Lei- 
 „cester, 55 
 
 Mary, Cardigan, 
 277 
 
 Mary’s, Guildford, 
 
 3 11 
 
 Mary the Less, 148. 
 
 J 53 
 
 Mary, Lambeth, 
 
 2 7 1 * 345 * 357 * 359 * 
 
 510,511.521 
 
 Mary in Marlbo¬ 
 rough, 220 
 
 Mary’s, Reading, 
 
 457 
 
 Mary Kallendar, 
 476.499.501.51'! 
 Mathew’s, Bethnal 
 Green, 256. 274, 
 275. 285.467 
 Mathew’s, Ipswich, 
 
 3 ° 4 » 3 ° 5 * 3 IO 
 
 Michael’s, 57 
 
 Michael’s, Bath, 
 
 443*543 
 
 Rex v. St. Nicholas, Glouces¬ 
 ter, 75.78.196 
 Nicholas in Not¬ 
 tingham, 452,453 
 Rex v. St. Olaves, 524 
 
 Olaves, Jewry, 524 
 Rex v. St. Paul’s, Bedford, 
 507.509. 550 
 Peter’s, 297.453 
 
 Page 
 Chester, 
 461 
 
 Peter’s in Oxford, 
 241. 306. 419. 
 
 4 21 * 424 . 
 Peter’s on the Hill, 
 452 524 
 Peter’s, Dorches¬ 
 ter, 334 
 
 Peter’s, Worcester¬ 
 shire, 269.288 
 Peter’s, Mancroft, 
 
 3 1 7 * 344 > 345 * 
 376. 381 
 Peter and St.Paul, 
 27.290 
 Petrox, 454. 497 
 Petrox in Dart¬ 
 mouth, 452. 466 
 Philip in Birming¬ 
 ham, 362. 365 
 Rev v. St. Sepulchre’s, 433. 
 
 443 * 540 
 Staffordshire Naviga¬ 
 tion, 74. 81. 102. 
 
 i2i. 166. 186 
 Standon, Massey, 319 
 
 321 
 
 Stanford, 511 
 
 Stannington, 302 
 Stanwix, _ 283 
 
 Startifant, 144 
 
 Stockbridge, 324 
 Stockland, 269, 270. 
 
 . - 5 ° 9 
 
 Stokesley, 309 
 
 StonehouseBridge, 138 
 Stotfold, 32 
 
 Stowmarket, 304. 312 
 Stratford-upon-Avon, 
 527,528 
 Stratton, 470 
 
 Stretton, 280 
 
 Stubbs, 44. 46. 50 
 Sudbrooke, 368. 378. 
 
 380 
 
 Sulgrave, 336. 355. 
 365.407.426 
 Rex 
 
 INDEX OF CASES. 
 
 Rex v. St. Peter’s 
 
 xxvii 
 
INDEX OF CASES. 
 
 Page 
 
 Rex i. Sutton, 301.304. 360, 
 361. 401.409.425 
 Syderstone, 320 
 
 Rex Tamworth, 14,15.38 
 Tarrant, 260 
 
 Taunton, 493 
 
 Tavistock, 507,508. 
 
 516 
 
 Taylor, 437 
 
 Telscombe, 215 
 
 Terrington, 442 
 
 Terrot, 153. 158. 167. 
 
 169 
 
 Tewksbury (Trustees, 
 &c.) 150 
 
 Thames Ditton, 310 
 Thatcham, 425 
 
 Thistleton, 345. 374. 
 
 381. 418 
 Thursley, 500 
 
 Titchiield, 425. 501. 
 
 526 
 
 Tolishunt Knights, 
 
 3 2 5 * 3 2 9 * 333 • 345 
 
 Tolpuddle, 181 
 
 Toms, 127. 137. 179 
 Topcroft, 535 
 
 Topham, 127. 174, 
 
 J 75 
 
 Top$ham,525,526.528 
 Tottington Lower 
 End, 279 
 
 Towcester, 271 
 
 Tunstead and Hap¬ 
 ping, 68 
 
 Turner, 125. 151, 174 
 Twitty, 42 
 
 Tynemouth, 91. 153. 
 
 187 
 
 Rex v. Uffculme, 68.175. 
 
 196. 226 
 Ullcsthovpe, 270 
 Ulverstone, 270. 321. 
 
 341 
 
 Under Barrow and 
 Bradley Field, 400, 
 401 
 
 Undermilbeck, 353. 
 
 382.424 
 
 Page 
 
 Rex v. Upwell, 381. 398 
 Uttoxeter, 15, 16. 19. 
 22. 24.59. 254 . 
 Rex v. Vandeleer, 497 
 
 Vandewall, 81,82. 179 
 Rex v. Waldo, 160 
 
 Walpole, St. Peter’s 
 
 283 
 
 Walton, 308.463 
 Wantage, 466. 544. 
 
 553' 556 
 Warner, 38. 47 
 
 Warley, 445 
 
 Watson, 24.26,27.35. 
 38.72.79,80. 108. 
 149.152. 154. 259. 
 
 543 
 
 Wavell, 63 
 
 Weddington,447.499, 
 
 500 
 
 Welbeck, 11.13,14 
 Welch and others, 63 
 Wellford, 387. 393 
 Weobly, 49.58.207 
 Westerham, 259 
 Westerleigh, 339. 352 
 Westgarth, 15. 37 
 Westmeon, 394 
 
 Westwell, 322 
 
 Weyhill, 307.309 
 White, 42.68. 78. 145. 
 176. 188. 190. 193, 
 
 *94 
 
 Whitechurch, Canoni- 
 corum, 314.450. 
 476. 488. 552. 558 
 Whitley, 441 
 
 Whitney, 144. 146 
 Whittlesea, 552,553. 
 
 Whittlebury, 341, 
 
 xt n* , 345# 379 
 
 Whixley, 286 
 
 Wickham, (Corpora¬ 
 tion,) 68.80. 
 
 Wilsborough Green, 
 258, 259 
 Wineaunton, 304.328 
 
 Rex 
 

 INDEX OF CASES. 
 
 XXIX 
 
 Page 
 
 Rex v. Winchcombe, 305. 
 
 3 2 3-339 
 
 Winterbourn, 552.559 
 Wintersett, 304.316. 
 
 3 28 335 - 34 S- 36 i. 
 369. 378. 415 
 
 Page 
 
 St. George’s v. St. Catherine, 
 
 St. George v. St. Margaret’s, 
 Westminster, 295 
 
 St. Giles v. Eversley, 257. 
 
 2 74 
 
 Winwic£ " 456. 534 St. Giles <v. St. Margaret’s, 
 Witton cum Twain- Westminster, 25S 
 
 brooke, 259. 277* St.JohnBaptist and St. James, 
 
 279 ' 5 2 4 
 
 Woburn, 281.284. St. Luke’s v, St. Leonard’s, 
 
 438.440,441 5 12 , 5 1 3 
 
 Woodford, 260. 286. St. Leonard’s, Shoreditch, 
 
 439 (Case of,) 143 
 
 Woodland, 129. 158 St.Mary, Colech urch,«u. Rad- 
 Woodward, 158 cliffe, 512. 524, 525 
 
 Woolstanton, 453,454 St.Mary v. St.Lawrence,552. 
 
 Worfield, 305.324,325 557 
 
 Worsfield, 314 St. Maurice v. St. Mary Kal- 
 
 Wrexham, 192 lender, 400. 55 2 * 55 ^> 557 * 
 
 559 ’ 5 6 ° 
 
 St. Michael’s in Norwich v. 
 
 St. Mathew's,Ipswich, 283 
 St. Nicholas v, St. Peter’s, 
 
 240. 451 
 
 St. Olave’s v. All Hallows, 
 
 509 
 
 St. Peter’s in Oxford v. Chip¬ 
 ping Wycomb, 424 
 
 St. Petrox v. Stoke Fleming, 
 501.509. 521 
 
 Wrington, 333, 334 
 336. 408 
 Wyke, 289 
 
 Wymondham, 45 
 
 Rex v. Yarmouth, 461 
 
 Sackevercll v. Sackeverelb 297 
 Salford v. Storeford, 457 
 
 Semple’s Case, 11 
 
 Seymour, Sir Edward’s Case, Stampe’s Cafe, 41 
 
 540. 544 Standen v. Standen, 269. 
 
 Sheen v. Godaiming, 368. 272. 297 
 
 383 Stanger v. Searle, 533 
 
 Simpson v. Martopp, 232 Stapylton v. Stapylton, 297 
 Skillington <u. Norton, 10. 16 Staughton v. Reynolds, 41 
 Small v. Allen, 548 Stead v. Pleaton, 
 
 Smelting Company v. Rich- Steel v. Houghton, 4. 6. 
 
 ardfon, 74. 128. 144, 154 240, 241 
 
 Smith v. Birch, 450 Stephenson v. Holditch, 496 
 
 South Carney v. Coultsbourn, Stevens v. Evans, 61. 221, 
 
 £ y • 3*9 JL 222 
 
 Spencely v De Wnlct, 443 Stevens v. Moss, 297, 298 
 St.Benedict v. St.Peter’s, 212. Stiles v. West, 273 
 
 216,217 Stone v. Grubham, 534 
 
 St. Cuthbert’s v. Westbury, Stonchouse-bridge, Case of, 
 
 $ 22 , $ 2 $ 138 
 
 Storey 
 
 i 
 
INDEX OF CASES. 
 
 Page 
 
 Storey v . Robinson, 231 
 Stoke Fleming v. Berry Pom- 
 roy 525,526 
 
 Stretton v. Norton, 259 
 
 Strutt v. Me’ihsh, 540 
 
 Stutter v. Freston, 40, 41 
 Suckley v. Whithorn, 244 
 
 246. 290 
 
 Swan v. Broome, 51 
 
 Swire v. Bel!, 332 
 
 T 
 
 Talbot *;. Hubble, 213 
 
 Talbury v. Fofter, 554 
 
 Tawney’s Case, 57.64, 65 
 Taylor v. Cole, 
 
 Taylor *;. Hague, 458 
 
 Temple *>. Prescott, 391 
 Tewkesbury v. Twining, 289 
 Theed *;. Starkey, 67 
 
 Thomas'*/. Thomas, 54,'; 
 Thompson *;. Jones, . 536 
 'Thompson *;. Saul, 295 
 
 Thurston v. Ddahay, 540 
 Tillard v. Sheboear, 490 
 Titchfield *;. Miifurd, 446 
 
 Tracey v. Talbot, 39. 6[.152. 
 
 227 
 
 Tynton v. King’s Norton,275 
 U 
 
 X 
 
 Under Barrow and Bradley 
 Field 400 
 
 Underhill v. Durham, 540 
 
 V 
 
 Valentia’s (Lord) Case, 297 
 Villiers v. Villiers, 540 
 
 Vinkeston v. Ebden, 11.16 
 
 ■ W 
 
 Page 
 
 Wallis Adm. *;. He wit 221 
 Wallis *;. De Lancey, 532 
 Walpole ( Lord ) v. Cholmon- 
 deley (Lord), 546 
 
 Walton v. Tryon, 132. 135 
 Wandsworth v. Putney, 305. 
 
 322.327 
 
 Ward v. Brampston, 40 
 Warner’s Cafe, 40 
 
 Watkins v. Edwards, 493, 
 
 494 
 
 Watson *;. Tryon, 202 
 
 Weld *;- Chamberlain, 272 
 West *;. Davis, 544 
 
 W estbrooke v. Strutville, 272 
 Westbury v. Coston, 290 
 Weston v. Cowledge, 188 
 Weston Rivers v. St. Peter’s, 
 Marlborough, 242. 248 
 Whiskens *;. Davis, 124 
 White’s Case, 436 
 
 Whitechapel v. Stepney, 285. 
 
 288 
 
 Whitfield v. Fausset, 540 
 Wick ford v. Brentford 368. 
 
 Wigmore’s Case, 272 
 
 Wilkes v. Smallbrooke, 437 
 Williams *;. Baron, 126. 185 
 East India Com- 
 
 p an y» 
 
 Williams *;. Jones 
 Williams v. Pritchard, 
 
 Willis Singer, 
 
 Wilson v. Poulter, 
 
 Wilson’s Case, 
 
 W ilkinson *;. Payne, 272. 297 
 
 \V ingham *;. Seilinge, 552. 
 
 55 8 > 559 
 
 Wood v. Drury, 531 
 
 Wright ex dem. Clymer *?. 
 
 Littlcr, 4 44 
 
 Wright v. Powle, 135 
 
 549 
 
 Il 5 
 
 137 
 
 53 * 
 
 546 
 
 Waite*;. Stokes (Inhabitants), * 
 
 51 Yelverton **. Cornwallis, 5.44 
 Waldron’s Case, 12 Young v Flolmes, 540.544 
 
 ADDENDA, 
 
ADDENDA. 
 
 Vol. I. 506. at the end. 
 
 But it is now decided that they will connect in the 
 following case: 
 
 The King against Inhabitants of Ribchester. Two jus- Saturday, 
 tices by their order removed Robert Salthouse, his wife 
 and two children by name, from Ribchester to Church, 
 both in the county of Lancaster. The sessions, on ap¬ 
 peal, quashed the order, subject to the opinion of this 
 court upon the following case: 
 
 \ 
 
 The pauper Robert Salthouse, when of the age of 17 
 or thereabouts, was bound apprentice regularly by in¬ 
 denture dated the 2d of November, 1790, to Messrs. 
 
 Feel and Co. Block or Calico Print Cutters, for the 
 term of six years, the said Messrs. Peel and Co. by the 
 said indenture, covenanting (amongst other things) to 
 pay to the pauper, the sum of six shillings weekly during 
 the said term. These indentures were proved to have 
 been executed by the pauper Robert Salthouse and his 
 mother, but no evidence was given of their having been 
 executed by Messrs. Peel and Co. The pauper during the 
 first two years of his said term served the said Messrs. Peel 
 and Co. and slept in the said Township of Ribchester. 
 
 After the end of that period, the pauper was sent by his 
 said masters to work for them in the said township of 
 Church, and he accordingly worked in the works of his 
 said masters in Church, and slept there, except on the 
 Saturday and Sunday nights, when he went to sleep with 
 
 his 
 
* . 
 
 atxxii Apprentice , [Addenda. 
 
 if 
 
 his mother in Ribchester, and returned on the Monday: 
 the employment of his said masters being at the works in 
 Church as aforesaid ; eleven other apprentices left the 
 works at Church on the Saturday, and returned on the 
 Monday. The masters, Messrs. Peel and Co., knew this, 
 and it was the usual custom for the apprentices to do so. 
 The pauper continued to work and sleep in the manner 
 last mentioned, for the term of two years longer, at the 
 end of which time he entered into an agreement with 
 Henry Walmsley, of Ribchester aforesaid, for five meals 
 in each week, for one shilling and eight-pence a week, 
 and he accordingly went every Saturday night to Walm- 
 sley’s house, in Ribchester, and returned to the works in 
 Church as aforesaid, and slept there, except upon the 
 Saturday and Sunday nights as aforesaid. The pauper 
 continued to reside and sleep in the manner lastmention- 
 ed for a quarter of a year, and until a Saturday above 
 Shrove Tuesday 1795, when the pauper received his pay, 
 and never returned again to the service of his said mas¬ 
 ters. On the night before this Saturday he slept in the 
 works at Church as abovementioned. The pauper, when 
 asked whether when he quitted the works on the said 
 Saturday he had determined not to return again, said that 
 he could not say that he did determine not to return, but 
 that it seemed he did not return. When asked whether 
 on quitting Messrs. Peel’s works in Church, for the last 
 time on the Saturday afternoon, he had formed any in¬ 
 tention not to return, he answered that he had not—be¬ 
 ing asked the said question as to Sunday, he made the 
 same answer; and further said that he could not fix up¬ 
 on any particular point of time when he determined not 
 to return. The pauper slept at Walmsley’s, in Rib¬ 
 chester, on the night of the Saturday in question, and 
 for the whole of the succeeding week : he then hired 
 ljumself into another employment, and returned no more 
 
 4 to 
 
Addenda.] Settlement by. 
 
 to serve the said Messrs. Peel and Co., as lias been al¬ 
 ready stated. 
 
 Lord Ellepborough, C. J. In this case the master 
 had been in the habit of receiving back his apprentices 
 after they had gone home, and by so receiving them he 
 shewed that it was not his purpose to renounce them on 
 that account. On Saturday night the pauper went in 
 pursuance of the usual indulgence, and it does not appear 
 what his intention was at that time, either of returning 
 or staying. He did not, however, return on the 
 Monday; the end and conclusion therefore gives its 
 character and denomination to the 01 iginal act of depar¬ 
 ture. Finis nomen operi imponit. From what was 
 finally done we must decide as to the determination of 
 the apprentice, when he v r ent away on the Saturday. 
 We find that he did not return, and that he did not as 
 formerly avail himself of the absence from Saturday to 
 Monday as an indulgence. In the King v. Stratford- 
 upon-Avon (i), a service was performed, the contract 
 therefore remained undissolved. Here the apprentice 
 by not returning on the Monday, must be considered as 
 having broken the contract on the Saturday when he 
 quilted his master’s works; and consequently the Friday 
 night was the last night of his residence as an apprentice: 
 the settlement therefore was at Church, whefe he slept 
 on that night and not at Ribchester. 
 
 Lo Blanc, J. There is one question which has very 
 properly not been touched upon in the argument. It is 
 stated that no evidence was given of the indentures hav¬ 
 ing been executed by the master. But it appears that they 
 were executed by the pauper, and that is sufficient. The 
 
 VOL. i. 
 
 (i) ii East, 176. 
 
 b 
 
 que Lion 
 
xxxiv Apprentice , [Addenda^ 
 
 question here is whether there was any residence under 
 the indentures of apprenticeship after the Saturday, 
 when the pauper left his master’s service and never 
 afterwards returned: without looking into the mind of 
 the apprentice, we have one clear fact which cannot 
 deceive us, viz. that when he left the service on the 
 Saturday he received his wages up to that time, after 
 which day he does not receive any more. It appears 
 therefore that he was not in the service of his master 
 after quitting his service on the Saturday. 
 
 Bayley J. I am of the same opinion. It is impos¬ 
 sible to say that this apprentice was serving under the' 
 indentures of apprenticeship after the afternoon of the 
 Saturday. The court cannot look to what was passing 
 in the mind of the apprentice, but to his acts. From 
 the nature of the work he was employed locally at the 
 manufactory during the ordinary working days: but 
 from Saturday to Monday he was free from his master* 
 If then he was to have that time entirely to himself, at 
 what time did he leave his master’s service ? It must 
 be taken that he was not in a condition to do any 
 
 act of service for his master after the Saturday 
 
 • 
 
 afternoon. 
 
 Dampier J. The case of the King v. Under- 
 milbeck (i), cited in argument, is the only case at all 
 like the present; but in that case the master recog¬ 
 nised the departure of the servant.* for he paid him 
 wages for the time of his absence. That therefore 
 affords a clear distinction between the two cases. Here 
 the apprentice was at weekly wages paid every Saturday; 
 and the only question is, whether there was a con- 
 
 Y . 
 
 (t) 5 Term Rep.387. 
 
 structive 
 
Addenda.] 
 
 Settlement by. xxxv 
 
 structive service, which was to go on during the 
 Saturday and Sunday. It seems to me, that the cir¬ 
 cumstance of the apprentice not having, returned on the 
 Monday, shews, that the service determined on the 
 Saturday, when he received his last wages ; although, it* 
 he had come back again, the master by receiving him 
 again would have recognised him as his servant during 
 the period of his being absent. 
 
 Order of Sessions quashed.(i) 
 
 Vol. I. page 507. 
 
 And the authority of Rex v. East Bridgeford has 
 been recognized in the following case : 
 
 Rex v. Barnsley, 1 Maule and Selw. 377. On appeal 
 against an order for the removal of Robert Gill, his 
 wife and children from the township of Barnsley to 
 the township of Killinghale, both in the West Riding 
 of the county of York, the court of quarter sessions 
 discharged the order, subject to the opinion of this 
 court on the following case: John Gill, the father of the 
 pauper, was bound apprentice by indenture, dated the 
 first day of December 1764, to Thomas Harrison, in 
 the township of Clint, for seven years, and served five 
 years* until his master died, when in consideration of 
 three guineas paid by William Bradfield, he was 
 assigned by Elizabeth Harrison (widow of the said 
 Thomas Harrison), by an unstamped indorsement on 
 the indenture, for the remainder of his term in the 
 words following: “ April 14th 1769. Be it remem¬ 
 bered, that I Elizabeth Harrison of Clint in the parish 
 of Ripley, do acquit and assign over my apprentice 
 
 (1) Maitle and Selw, MSS. 
 
 b 2 
 
 John 
 
Apprentice , [Addenda. 
 
 John Gill, for all the remainder of his said appren¬ 
 ticeship unto William Brad field the younger, of 
 Killinghale ” (Signed) Elizabeth Harrison, William 
 Bradfield; Witnesses, William Hays, George Clarke- 
 son. 
 
 No evidence was offered to shew that Elizabeth was 
 either the executrix or administratrix of her husband 
 Thomas Harrison. John Gill w r ent to and served 
 William Bradfield, in Killinghale, till the expiration of 
 his indenture. John Gill’s family for the last seven 
 years had been regularly relieved by having his rents 
 paid by the township of Killinghale, during which time 
 he and his family were residing in another parish. 
 The pauper Robert Gill has not done any act to gain a 
 settlement for himself. 
 
 The Attorney General and Scarlett, in the erder of 
 sessions, admitted that a stamp was not necessary at the 
 time of the assignment, and also that if the circumstance 
 of relief had stood by itself, the sessions would have 
 been authorized by the case of Rex r. Wakefield, in 
 drawing a conclusion different from that which they had 
 come to; it having been decided in that case that relief 
 afforded to the pauper’s father, during his residence in 
 another parish, was evidence of the pauper’s settlement 
 in the parish affording the relief; but still it was but 
 evidence, and therefore may be rebutted by other cir¬ 
 cumstances. Now here it appears that the relief was 
 given under a mistake of the settlement being in Kil¬ 
 linghale, for the assignment of the apprentice by E. Har¬ 
 rison was not such an assignment as would confer a set¬ 
 tlement. It docs not appear that she had any legal 
 interest in the apprentice; she was not proved to have 
 been executrix, and even if she had been, it should seem 
 from the preamble of stat. 32 G. III. c. 57., which 
 
 3 statute 
 
Addenda.] 
 
 Settlement by. 
 
 XXXV11 
 
 statute gives a power to the executor to assign, that 
 before the act the apprenticeship ceased on the death of 
 the master. [Bayley, J. observed that the act was 
 confined to parish apprentices.] It must be admitted 
 that in Rex v. East Bridge-ford, which was before the 
 act, such an assignment. as the present was lioldea suf¬ 
 ficient, and there it was argued as if the widow was to 
 be considered as executrix de son tort; but that argu¬ 
 ment docs not seem to be confirmed by the decision in 
 Rex v. Chirk; and suppose the widow had been sued 
 as an executrix, and she had pleaded ne unques execu¬ 
 trix, could this assignment have been given in evidence 
 to disprove such plea ? [Lord Ellenborough C. J. The 
 words, “ I assign over my apprentice,” purport that she 
 had an interest. Le Blanc, J. I suppose the ground 
 taken at the sessions w r as this; that at the distance of 40 
 years from the assignment, by which assignment the 
 widow lias assumed to act as if she had interest in the 
 apprentice, and after the parish had maintained the 
 pauper’s family for seven years, whilst resident in 
 another parish, the sessions ought not to have required 
 actual proof of her being executrix.] The sessions, 
 might draw the conclusion which they have drawn, that 
 she w r as not executrix. Besides there is another objec¬ 
 tion, viz. that this assignment was by indorsement on 
 the deed, but it is not competent to assign over a deed 
 without a deed: therefore it could not be a regular 
 assignment without a deed, [Lord Ellenborough C. J. 
 But it might operate as a consent of the widow to the 
 change of service. Bayley, J. The case of St. Petrox v. 
 Stoke Fleming shews, that such assignment need not be 
 by deed.] 
 
 Lord Ellenborough, C. J. The only doubt is whether, 
 where the sessions have drawn a conclusion palpably 
 erroneous upon two points, we should send the case down 
 
 b 3 again. 
 
Tenement , fyc. 
 
 xxxviii 
 
 [Addenda. 
 
 again, or in ease of the parties draw the irresistible con¬ 
 clusion ourselves. The relief given by the parish of 
 Killinghall to the family of John Gill for seven years, is 
 evidence of such preponderating weight that I should 
 think any judge would direct a jury to find upon such 
 evidence, (supposing the question legally to come before 
 them,) that Gill was by some means or other a settled 
 inhabitant of that parish. It does not indeed amount to 
 an estoppel; but it is cogent evidence against the parish. 
 The sessions also ought to have drawn a different con¬ 
 clusion on the other point. The assignment (which it 
 is admitted was not at the time required to be stamped) 
 is in its form an assignment by the widow, 66 as my ap¬ 
 prentice,” and at this distance of time we will presume, 
 if necessary, that she was lawful executrix, or even if 
 she were executrix of her own wrong, still according to 
 the case of the King v. East Bridgeford, if the pauper 
 lived 40 days under that assignment we should hold him 
 settled in the parish; and one case is enough on such a 
 subject. 
 
 Per Curiam, Order of Sessions quashed. 
 
 Vol. II. page 32. 
 
 Also if the value of land is increased by cultivation 
 previous to the occupation, and by reason of an agree¬ 
 ment to that effect, it is capable of conferring a settle¬ 
 ment as has been decided in the following cases: 
 
 The King against the Inhabitants of Ringwood, 
 1 Maule & Selw. 381. By an order of two justices, 
 Charles Trowbridge, his wife, and children, were re¬ 
 moved from the parish of Tollard Royal, in the county 
 of Wilts, in the parish of Ringw r ood, in the county of 
 
 Hants. 
 
Addenda.] 
 
 Settlement — Value . 
 
 XXXIX 
 
 Hants. The sessions, on appeal, confirmed the order, 
 subject to the opinion of this court on the following 
 case : 
 
 The pauper being legally settled in the parish of Tol- 
 lard Royal, and renting a cottage there of the annual 
 value of thirty shillings, about Easter 1806 took a dairy 
 of seven cows, at seven pounds a cow, for twenty w eeks. 
 The cows were to be fed on lands of upwards of ten 
 pounds annual value, part lying in the parish of Cran- 
 bourne, and part in the parish of Ringwood. The pau¬ 
 per also had a small house with the dairy, situate in the 
 parish of Ringwood, in which the pauper’s wife and 
 family resided during the whole twenty w r eeks ; and the 
 pauper slept sometimes at Tollard Royal and sometimes 
 at Ringwood. For about 12 weeks of the time he slept 
 at Ringwood, and about eight weeks in his cottage at 
 Tollard Royal, of which he kept possession during the 
 whole time. About nine o’clock of the night before the 
 pauper gave up the dairy, having slept the preceding 
 night at Tollard Royal, he came to Ringwood to pack 
 up his furniture, and fetch back his wife and family; 
 and he passed the night there, but did not sleep nor 
 go to bed, but was occupied in packing up his goods, 
 A waggon came about two o’clock in the morning to 
 take the goods, and the pauper, his wife, and family, 
 with the waggon and goods, left their house at Ring- 
 wood between five and six o’clock in the morning, and 
 returned to their cottage at Tollard Royal. The pauper 
 afterwards quitted this cottage, and in the same year 
 rented another cottage in the same parish of Tollard 
 Royal, for which he paid two guineas a-year, and he had 
 the use of a yard for his beasts, fowls, and pigs to run in, 
 for which he paid one pound a-year, and his landlord had 
 the use of the yard at the same time, whilst he occupied 
 this cottage and yard, he took nearly an acre of land in 
 
 b 4 another 
 
Tenement , £rc. 
 
 [Addenda. 
 
 another parish, at the rent of eight pounds from Easter 
 to October following, for planting potatoes. The 
 ground had been dug by the landlord for that purpose, 
 and it would not have been let for more than half that 
 price, if it had not been dug. The pauper got a good 
 profit by his crop : he also took twenty-eight lug of 
 land of another person, which was ploughed for the 
 same purpose ; for which he paid fourteen shillings, 
 and during the time he rented these pieces of land, he 
 lived with his family in his house at Tollard Royal. 
 Other land is let in the same parish at the same rate, 
 when ploughed and prepared ready for potatoes in 
 like manner. In a common way, an acre of such 
 land would not let for more than two pounds, though 
 when dug for a crop of potatoes it would let for eight 
 pounds. 
 
 Grose, J. — The only question is, whether the pau¬ 
 per came to settle on a tenement of the yearly value 
 of ten pounds. Looking at the case, we find that he 
 went to Tollard Royal with his family, and re¬ 
 sided there more than forty days. As to the value of 
 the tenement which he occupied during that time, it is 
 expressly stated to be above ten pounds; but it has been 
 contended that the land which he rented from Easter to 
 October for planting potatoes, might be worth eight 
 pounds for that time, and yet not of that value for a 
 year. That proposition I do not understand, and there¬ 
 fore cannot assent to it. 
 
 Le Blanc, J. — In this case the pauper rented a cot¬ 
 tage in Tollard Royal, at two guineas a-year, during 
 which time he also rented nearly an acre of land in an¬ 
 other parish, from Easter till October, for planting 
 potatoes, at the rent of eight pounds; which land had 
 
 been 
 
Addenda.] Settlement — Value , $>c. 
 
 been previously dug by the landlord, and would not 
 have been let for more than half that price, if it had not 
 been so dug. The pauper also took another piece of 
 land at fourteen shillings. All these premises taken to¬ 
 gether at the rent for which they wore let, amount to 
 above the value of ten pounds. But the question is, 
 whether we are to reduce that value by taking the land 
 which was let for eight pounds, at the rent for which 
 it would have been worth to be let if it had been in a 
 different state ? or in other words, w hether we are to 
 deduct from the rent the value of the labour bestow r ed 
 by the landlord on the premises before he let them ? I 
 think the court must look to what was the value of the 
 tenement at the time the pauper came to settle upon it, 
 without considering by what means it became of that 
 value. I agree w r ith the gentlemen who have argued on 
 the other side, that the value of the tenement increased 
 by the labour bcstow r ed upon it after the letting cannot 
 be taken into account; as if the pauper had taken it at 
 the rent of five pounds, and had bestowed labour upon 
 it to the amount of five pounds more, that would not 
 have made a renting of ten pounds. But where the 
 labour has been previously bestowed, so as to make the 
 land fairly worth the rent at the time it is taken, the 
 court cannot separate the value of that labour from that 
 of the land. 
 
 Bayley, J. — This is nothing more than a party tak¬ 
 ing land in a high state of cultivation, which has ren¬ 
 dered it of the value agreed to be given for it at the 
 time of the taking. Nor do I think that it would have 
 been worth less if it had been taken for a whole year. 
 It is urged, indeed, by the counsel, that if the pauper 
 had taken it for a year, lie would have had to dig it 
 himself, and then it would have been of less value to him 
 than what was given for it for a shorter period; but it 
 
 does 
 
 xli 
 
xlii Tenement , Sfc. [Addenda. 
 
 does not follow, that if he had taken it for a year, he 
 would necessarily have had to dig it. I think, there¬ 
 fore, that this tenement, coupled with the other pro¬ 
 perty, amounts to a tenement of more than iol. a-year. 
 
 Order of Sessions quashed. (i) 
 
 The King against the Churchwardens and Overseers 
 of the poor of the parish of West Cramore. 
 
 On appeal against an order of two justices for the 
 removal of William Norris, Ezel his wife, and their four 
 children, from the parish of Monckton Deverell, in the 
 county of Wilts, to the parish of West Cramore, in the 
 county of Somerset, the court of quarter sessions con¬ 
 firmed the order, subject to the opinion of this court on 
 the following case: 
 
 A settlement in the parish of West Cramore was 
 proved by the respondents, subsequently to which the 
 pauper rented a house at Monckton Deverell, of the va¬ 
 lue of 3I. per ann. and occupied it and resided thereon 
 for four years. During one year of his said tenancy, 
 he rented of one Mary Rossi ter 136 lugs of land, at 
 Monckton Deverell, at the rate of pd. per lug, amount¬ 
 ing to the sum of 5I. 2s. for the purpose of planting po¬ 
 tatoes. He also, at the same time, rented of one Ben¬ 
 jamin Maish, 58 lugs, at Hill Deverell, an adjoining 
 parish, at the same rate of pd. per lug, amounting to 
 2I. 4s. pd., the rentings together amounted to 1 ol. 6s. pd. 
 The pauper agreed to take the land of Mary Rossiter, 
 ready ploughed and manured; when he took it the 
 ploughing and manuring was begun, but not finished, 
 but when he entered upon it, it was quite prepared. 
 At the time of planting, he followed Mrs. Rossiter to 
 plough, and planted the potatoes himself, which were 
 
 (1) Sec Rex n Pur ley, 16 East, 126. 
 
 afterwards 
 
Addenda.] Settlement — Value , §c. 
 
 afterwards covered in by the plough. The agreement 
 with Maish was similar to that with Rossiter ; when the 
 pauper took and entered Maish’s land, it was ready 
 ploughed and manured. The potatoes were planted in 
 the same manner as before stated. The two pieces of 
 land, together, without being ploughed and manured, 
 were worth about 2I. 8s. per ann ., but being ploughed 
 and manured, were worth what the pauper paid for 
 them, namely, 7I. 6s. pd. The pauper took the two 
 pieces of land in the spring, for hoe crop, and he 
 planted the potatoes in May, and took the crop out in 
 November. 
 
 Gaselee and A. Moore, in support of the order of 
 sessions, said, that this case had been reserved at the 
 sessions before the case of Rex v. Ringwood, which, 
 however, could not be relied on as decisive of the pre¬ 
 sent case, because there the land had been dug by the 
 landlord before the letting; whereas, here it is found 
 that the ploughing and manuring was not completed 
 when the pauper took the land. And Le Blanc, J. in 
 Rex v. Ringwood, says, “ that the value of the tene¬ 
 ment, increased by the labour bestowed upon it after the 
 letting, cannot be taken into the account.”—This agree¬ 
 ment was, in effect, to take the land, and to employ the 
 landlord as his labourer to improve its value. It is quite 
 clear, that if the pauper had employed labourers him¬ 
 self, and thereby raked the value, a settlement would 
 not have been gained; and this is in substance the same 
 
 Lord Ellenborough, C. J. The pauper agreed to 
 take a tenement, which should be of a certain value; 
 and at the time when he entered on it, it was of that 
 value; for the ploughing and manuring were then 
 finished. 
 
 Le Blanc 
 
xliv 
 
 Estate , 
 
 [Addenda. 
 
 Le Blanc, J. The distinction relied on does not vary 
 the case; because no precise sum was agreed to be paid 
 for the labour. The observation alluded to must be 
 taken with reference to the case then before the court, 
 
 v 
 
 and not as applicable to a case of this kind. 
 
 Both orders quashed, (i) 
 
 Vol. II. page 92. 
 
 And the authority of Rex v. Mattingley has been re¬ 
 cently recognized and adopted in the following case: 
 
 The King against the Inhabitants of Olney. The 
 court of quarter sessions for the county of Buckingham, 
 discharged an order of two justices, for the removal of 
 Richard Mayes from the parish of Olney, in • the said 
 county, to the parish of Earls Barton, in the county of 
 Northampton, subject to the opinion of this court on the 
 following case: 
 
 The respondents proved the pauper settled at Earls 
 Barton, by a certificate, dated the 25th of July, 1788, 
 and directed to the parish of Olney, acknowledging him 
 to be a legally settled inhabitant of the parish of Earls 
 Barton. In order to shew a subsequent settlement, the 
 appellants proved, that whilst the pauper was residing- 
 in the parish of Olney, under the said certificate, in or 
 about the month of September 1800, and some time 
 prior to the execution of the deed of feoffment 1 herein¬ 
 after mentioned, he agreed with one Michael Hinde, 
 that he the pauper would purchase a messuage belong¬ 
 ing to Hinde, situate in Olney, at the sum of 52I., if 
 Hinde would allow 40I., part of the said 52L to remain 
 upon mortgage, to which Hinde consented; and, in 
 pursuance thereof by deed of feoffment, bearing date 
 the 8th of October, 1800, Hinde, in consideration of the 
 
 (1) Maule and Selw. MSS. 
 
 sum 
 
 % 
 
Addenda.] Settlement by. xlv 
 
 sum of 52I. therein mentioned to be paid by the pauper, 
 conveyed to him (the pauper) in fee the said meffuage; 
 and upon the deed of feoffment there was indorsed a 
 receipt for the consideration-money of 52I., but in fact 
 only 12I. were paid to Hinde, and the remaining sum 
 of 40I. was secured to him by deed of mortgage bearing 
 date the 9th of October, 1800, by which the pauper, 
 pursuant to the agreement before mentioned, demised 
 the said messuage to Hinde for a term of ioco years, 
 in consideration of the sum of 40I. in deed of mortgage 
 mentioned to have been paid by Hinde to the pauper; 
 and there was a proviso for the deed’s becoming void 
 upon payment by the pauper, his heirs, executors, or 
 administrators, to Hinde, his executors, administrators, 
 or assigns, of the sum of 40I., with lawful interest, 
 upon the 9th of April then next ensuing. The feoff¬ 
 ment and deed of mortgage were both executed at the 
 same time, and remained, together with the title-deeds, 
 in the custody of Hinde. The pauper immediately 
 entered into poffeffion of the messuage, and continued 
 to reside therein, and paid the interest upon the said 
 sum of 40I. to Hinde, until the execution of the deeds 
 hereinafter mentioned ; but, during such time, never 
 had any ability to pay off the principal. About a month 
 before the 12th of June 1812, the pauper agreed with 
 one Thomas Bowden to sell to him the said messuage, 
 in consideration of the sum of 60L, and soon afterwards 
 Bowden paid to Hinde the sum of 40I. in discharge of 
 his mortgage, and in part of his (Bowden’s) purchase- 
 money, and received from Hinde the title-deeds, toge¬ 
 ther with the deeds of feoffment and mortgage, which 
 Hinde had never delivered up to the pauper. After¬ 
 wards, by indorsement cn the said indenture of mort¬ 
 gage, bearing date the I2lh of June 1812, Hinde, in 
 consideration of 40I. to him therein mentioned to be 
 paid by the pauper, assigned the term of 1000 years 
 
/ 
 
 xlvi Estate , [Addenda. 
 
 to the pauper, and by deed of lease, dated respectively 
 the 12th and 13th of June 1812, the pauper conveyed 
 the messuage to Bowden in fee, for the consideration of 
 6ol.;,and 20I., being the balance of the purchase-money, 
 were then paid by Bowden to the pauper. The in¬ 
 dorsement and indentures of lease and release were all 
 executed at the same time. The question for the opi¬ 
 nion of the court is, whether the pauper gained a 
 settlement in the parish of Olney, by the purchase of 
 the above estate and residence thereon. 
 
 Grose J. The question is, whether this was a pur¬ 
 chase for the sum of 3 ol. bona jide paid, so as to satisfy 
 the statute 9 Geo. I., where the purchase was contracted 
 for the security to be given for part of the purchase- 
 money, and such part never paid by the purchaser. 
 The case in substance states, that the premises were 
 mortgaged for 40I. of the purchase-money, and that that 
 money was not paid. But I think that the considera¬ 
 tion must be bond fide paid at the time of the purchase, 
 in order to satisfy the statute. Then it is clear that 
 this was not a purchase of an estate for 30I. paid at the 
 time, the consideration-money having remained upon 
 security. 
 
 Le Blanc J. The stat. 9 Geo. I. enacts, that no 
 person shall gain a settlement by virtue of any purchase 
 of any estate, whereof the consideration doth not 
 amount to 30I. bond fide paid. The question arises on 
 the purchase. The purchase-money amounted to 52I., 
 of which 12I. only were paid at the time, the rest was 
 left on mortgage to the vendor. The circumstance 
 distinguishes it from the cases cited, where the party 
 purchasing paid the whole money to the vendor by bor¬ 
 rowing a part aliunda; so that there he had credit to 
 borrow of others. But in Rex v. Mattingley, which has 
 
 12 not 
 
Addenda.] Settlement by. xlvii 
 
 not been cited, it was held where the purchaser con¬ 
 tracted for the purchase of a copyhold estate for 39I., 
 which was mortgaged for 32I. and paid only 7I., and 
 was admitted subject to the mortgage, that it was not 
 a purchase for 30I. bond fide paid so as to take it out of 
 the statute. That is a direct authority on this part of 
 the case. But it has been argued upon a supposed 
 difference, inasmuch as the purchase-money was ulti¬ 
 mately paid in the subsequent transaction with Bowden. 
 
 But how does it stand ? All that was done by Bowden, 
 when he became the purchaser of the estate, was to pay* 
 off the incumbrance in order to get the title-deeds into 
 his hands, w r hich had never passed from the original 
 seller into the hands of the pauper; that was a payment 
 therefore made by Bowden for his own benefit, and not 
 on behalf of the pauper. Bayley, J. concurred. 
 
 Order of Sessions quashed. (1) 
 
 Vol. II. page 121. 
 
 And for another case in which the court held that a 
 settlement should have been presumed from relief given 
 in a foreign parish. — Rex v. Barnsley, Addenda, 
 Vol. I. p. xxxv. 
 
 (1) 1 Maule and Selw.^7, 
 
 A TREATISE 
 
I 
 
 A 
 
 
 T R E A T I S E 
 
 ON THE 
 
 LAWS OF THE POOR, 
 
 &)C. c SfC. (%'C. 
 
 CFIAPTER I. 
 
 Of the Manner of providing for the Pool' previous to the 
 
 Statute 43 d Elizabeth, cap . 2. 
 
 \ ' 
 
 ^HE duty of maintaining the poor is said to have de¬ 
 volved upon the clergy for some ages after the in¬ 
 troduction of Christianity into England. Originally a 
 fourth, and afterwards a third of their tithes was devoted 
 to this charitable purpose, and administered by the in¬ 
 cumbent under the superintendance of his bishop (1). 
 The churchwardens and principal inhabitants are sup¬ 
 posed to have taken some share in making a judicious 
 application of this parochial fund (2). But if such in¬ 
 terference ever did take place, it was by the rector’s 
 
 (1) Kennet. Impropr. 14, 15. 
 
 1 Black Com. 359. Burn’s Hist, of 
 the Poor Laws, 1, &c. 
 
 VQL. I. 3 
 
 { 2 ) 3 Burn, tit, Poor, 
 
 permission? 
 
 fas 
 
 1 
 
 
» 
 
 2 Of the Manner of providing for the Poor , 
 
 permission, for they had no power to direct the expen¬ 
 diture, or control the misuse. (i) 
 
 The period is not ascertained at which this portion of 
 tithes was applied to other purposes. We may conjec¬ 
 ture that it was gradually re-assumed, through the in¬ 
 crease of monastic institutions. The principal cr recto¬ 
 rial tithes ox* many parishes, being appropriated to the 
 use of religious orders, they undertook a share of the 
 burthen, as they retained the funds originally set apart 
 for the poor’s fupport. 
 
 The legislature does not appear to have interfered with 
 this application of ecclesiastical revenues, except in a 
 solitary instance. In the 15 of Richard the second an 
 act passed, requiring, “ that in every licence to be made 
 66 in the chancery of the appropriation of any parish 
 u church, it shall be expressed that the diocesan shall 
 “ ordain, according to the value of such church, a con- 
 
 venient sum of money to be paid and distributed yearly 
 4C of the fruits and profits thereof, to the poor pa- 
 “ rishioners, in aid of their living and sustenance for 
 “ ever.” (2) 
 
 Until the first attack made upon monastic property at 
 the dawn of the reformation, the revenues of the clergy 
 were administered in other respects according to the rules 
 framed for particular endowments, or the general regula- 
 
 (1) “ In ancient times, tithes were “ lar parishes, they were not con- 
 divided into three parts, —the first “ sidered as making in any part a pro- 
 “ for maintenance of religion, the “ vision for the poor, which might be 
 “ second for the church, and the “ claimed as a right.” Per Lord 
 K third for the poor; but the third Loughborough, C.J. Steel v. Houghton 
 * division was a matter of charity et ux. i H. Black.5a. 
 
 “ rather than of right. When by the (2) Chap. 6. enforced by 4 H. IV. 
 •* second Lateran council, in the chap. 12. 5 Hen. IV. Rot Pari. 74, 
 
 “ twelfth century, (A. D. 1139,) 1 Gwill. 14. 
 
 •“ tithes vrere appropriated to particu- 
 
 tions 
 
previous to the Statute 43 d Elizabeth • 
 
 tions ordained for the government of the church and the 
 disciplineof its members. Several statutes were passed to 
 regulate the internal ceconomyof religious houses; butthe 
 object of these laws was to ease the regular clergy from 
 an oppressive and tributary hospitality exacted by the 
 powerful, which absorbed their revenues and usurped the 
 portion of charity and the dues of the indigent. (1) 
 
 The alms supplied by monasteries, together with hos¬ 
 pitals and other institutions founded and endowed for the 
 purpose of charity, constituted the chief but not the sole 
 resources of those who fell back upon their fellow-crea¬ 
 tures as unable to sustain themselves (2). The effects of 
 persons dying intestate were vested in the ordinary, to be 
 applied, among other pious uses, to relieve the poor of his 
 diocese; and private charity derived vigour and energy 
 beyond the common impulse of humanity, from the su¬ 
 perstitious notion that prayers purchased by donations 
 to the poor, conferred everlasting happiness upon the 
 dead. 
 
 The aged and impotent poor had no other sources of 
 support, until the reign of Henry VIII.; for since 
 the conquest, neither the common nor statute law made 
 any direct provision for the purpose, unless permit¬ 
 ting the poor to beg by licence can be deemed an ex¬ 
 ception. 
 
 The author of the Mirror states indeed (3), that by the 
 common law, “ the poor were to be sustained by parsons, 
 44 rectors of the church, and the parishioners, so that none 
 44 of them shall die for default of sustenance.” But no 
 method is pointed out by which the performance of this 
 
 (1) Stat. 3 Ed. I. ch. i. 35 Ed. I. (z) 1 Black. Corn. 359. 
 
 stat. x. c.r. 9Ed.II. stat. 1. c. 11. (3) Mirr. c. 1. s.3. 
 
 1 Ed. III. stat. z, c. 10. 14 Ed. III. 
 
 stat. 4. c. 1. 
 
 B 2 
 
 duty 
 
* 
 
 Of the Manner' of providing for the Poor, 
 
 duty could be enforced, or its omission punished (i). 
 Such abstinence from regulation on the part of our civil 
 government, is no slight testimony that the clergy devoted 
 a sufficient portion of their immense property to maintain 
 the poor (2). .If any objection can be made to their con¬ 
 duct, it is, that their charities were lavished with incon¬ 
 siderate humanity, detrimental to the industry and police 
 of the country. 
 
 * 1 
 
 The various and highly penal laws made during this 
 period against vagrants and sturdy’beggars (3), a descrip¬ 
 tion of persons nourished in their way of life by the 
 largesses of misguided piety, gives some countenance to 
 this opinion. 
 
 But a more direct proof of the fidelity with which the 
 clergy administered the trust reposed in them, arises from 
 observing, that the first legislative attempt to provide for 
 the impotent poor, was made in the same year when the 
 property of so many religious houses was vested in the crown. 
 The first great act of dissolution 27 Henry VIII. c. 28. 
 affords a decisive testimony, not only of their hospitality, 
 but of their efforts to promote agriculture and industry. 
 It enacts, that all persons to whom the king shall 
 demise the sites and demesnes of any of the dissolved 
 
 (i) 1 Black. Com. 359. Mr. Jus¬ 
 tice Gould was of opinion that, “ ever 
 “ since the settlement of parishes, the 
 ** poor inhabitants were esteemed as 
 * { parishioners, and their necessities to he 
 “ relieved by the parish to \vhich they 
 “ belonged.” Steel v. Houghton et 
 ux. 1 H. Black. 55. But the opinion 
 of Lord Loughborough, C. J. lb. 52. 
 seems contra, post. 6. 
 
 (a) A third, and some say a greater 
 proportion of the entire property of 
 the kingdom was vested in the clergy 
 
 at the time of the conquest, and in 
 the reign of Richard II. they held a 
 fourth. At the commencement of the 
 reformation, the regular or monastic 
 clergy are calculated to have possessed 
 what amounted to a fifth of the re¬ 
 venues of the kingdom, See 2 Burn’s 
 Ecc. Law. tit. Monasteries, and the 
 authorities there cited. 
 
 (3) See them collected, Burn’s 
 Hist, of the Poor Laws, chap. 3, 
 p. 22. 
 
 bouses. 
 
 1 
 
previous to the Statute 43 d Elizabeth, 
 
 \ ' 
 
 houses, shall keep an honest continual house and household 
 there; and for that purpose occupy yearly as much of 
 the demesnes in ploughing and tillage of husbandry, as 
 t he said religious had done before, on pain of 61 . 13s. 4d. 
 a month, and the justices in sessions were to inquire 
 thereof. This regulation continued until 21 Jac. I. when 
 the clause was repealed. 
 
 The eyHen. VIII. c. 25. contains the first provision by 
 which particular districts are directed to support their poor, 
 so that none of them of very necessity shall be compelled 
 to go openly in begging. The act was enforced by a trivial 
 penalty of 20s. per month. Many schemes were proposed 
 and enforced by subsequent statutes to accomplish this 
 object. They are collected in the fourth chapter of Dr. 
 Burn’s history of the poor laws (1), and it is sufficient for 
 the present purpose to point out their general tendency in 
 the words of that respectable author. 
 
 “ It is curious” (says he) (2) “to observe the pro- 
 “ gress, by what natural steps and advances the compi.il- 
 66 sory maintenance became established. First, the poor 
 “ were restrained from begging at large, and were con- 
 “ fined to beg within certain districts. Next, the several 
 “ hundreds, towns corporate, parishes, hamlets, or other 
 “ like divisions, were required to sustain them with such 
 “ charitable and voluntary alms, as that none of them of 
 “ necessity might be compelled to go openly in begging. 
 “ And the churchwardens, or other substantial inhabi- 
 “ tants, were to make collections for them, with boxes 
 “ on Sundays, and otherwise by their discretions. And 
 u the minister was to take all opportunities to exhort and 
 “ stir up the people to be liberal and bountiful. Next, 
 
 (1) 12R.II. c. 7. 11 H. VII. c. 2. c. 2. 2& 3 Ph. & M. c. 5. 5 Elrz c. 3. 
 19 H. VII. c. 12. 22 H. VIII. c. 12. 14 Eliz. c. 5. 
 
 27 H. VIII. c. 2j. 1 lid. VI. c. 3. (2) Ch. 5. p.105. 
 
 4 Ed. VI. c. 16. 5 & 6 Ed. VI. ' 
 
 B 3 
 
 “ houses 
 
6 
 
 43 Eliz. 
 c. 2. 
 
 Of the Manner of providing for the Poor , SfC. 
 
 44 houses were to be provided for them by the devotion 
 44 of good people,, and materials to set them on such work 
 44 as they were able to perform. Then, the minister, 
 44 after the gospel every Sunday, was specially to exhort 
 44 the parishioners to a liberal contribution. Next, the 
 44 collectors for the poor, on a certain Sunday in every 
 44 year, immediately after divine service, were to take 
 44 dewn in writing, what every person was willing to 
 44 give for the ensuing year; and if any should be obstinate 
 44 and refuse to give, the minister was gently to exhort 
 44 him; if still he refused, the minister was to certify such 
 44 refusal to the bishop of the diocese, and the bishop 
 44 was to send for and exhort him in like manner; if he 
 44 stood out against the bishop’s exhortation; then the 
 44 bishop was to certify the same to the justices in sessions 
 44 and bind him over to appear there: And the justices, 
 44 at the said sessions, were again gently to move and per- 
 44 suade him; and, finally, if he would not be persuaded, 
 44 then they were to assess him what they thought reason- 
 44 able towards the relief of the poor. And this brought 
 44 on the general assessment in the fourteenth year of 
 44 Queen Elizabeth.” 
 
 This statute underwent some modifications during the 
 government of that excellent princess (i). B ut in the 43d 
 year of her reign (2), another act was framed upon those 
 which had passed previously, and which is said to have 
 first introduced a right to a maintenance by settlement (3). 
 Under this statute, with a few r alterations to be noticed 
 hereafter, the fund for setting the poor to w r ork, and 
 maintaining those who are unable to do so, is raised at 
 this day. 
 
 f - A 
 
 (1) 18 Eiiz. c. 3. 35 Eliz. c 4. (3) Per Lore! Loughborough, C. J. 
 
 39 Eliz. c. 3. c. 4. c. 5. c. zi. Steel v. Houghton et uxor. 1 H. 
 
 (2) C. a. Black. 53. 
 
 CHAP- 
 
 i 
 
f 
 
 ( 7 ) 
 
 CHAPTER II. 
 
 Of the Local Divisions by which the Poor are to be 
 
 maintained . 
 
 more ancient statutes for regulating the poor were Origin of 
 
 maintaining 
 the Poor 
 
 enacted to repress {heir vagrancy, not to provide for 
 
 their maintenance. They refer to the civil division of the parishes, 
 kingdom into townships and hundreds, and not to that of 
 
 parishes which respects our ecclesiastical institutions. (i} 
 
 The first direct mode adopted for raising a fund to 
 
 relieve the indigent, after the suppression of monasteries, 
 was by collecting alms in the church. The former libe¬ 
 rality of the clergy, their influence over the moral feel¬ 
 ings of their parishioners, and the necessary connection 
 bet ween their functions and the duties of charity, induced 
 the legislature to adopt a practice, which seems to have 
 had its original foundation in the primitive institutions of 
 our church. 
 
 When money was thus collected by parishes, it fol¬ 
 lowed of course that it should be distributed within the 
 same limits. The 43d of Eliz. c. 2. made no alteration 
 in this particular, but devised a more effeccual method 
 for raising that fund, by which the poor were supported 
 in parishes when the statute passed. 
 
 It enacted, that 44 the churchwardens of every parish, 4^ Elia. 
 44 and four, three, or two substantial householders there, c ’ 2 ‘ s ‘ 3 * 
 44 as shall be thought meet, having respect to the proper- 
 
 £ 4 
 
 44 tion 
 
 V 
 
8 
 
 Confined to 
 parishes. 
 
 Or reputed 
 parishes. • 
 
 Of the Local Divisions for which Overseers 
 
 “ tion and greatness of the same parish and parishes, to 
 be nominated yearly in Easter week, or within one 
 “ month after Easter, under the hand and seal of two or 
 66 more justices of the peace in the same county, whereof 
 one to be of the quorum, dwelling in or near the same 
 “ parish or division where the same parish doth lie, shall 
 6< be overseers of the poor of the same. ,, 
 
 Sect. 9. provided, that where any parish extends into 
 more counties than one, of into different liberties, the 
 magistrates of which possess an exclusive jurisdiction, that 
 each set of magistrates shall nominate overseers within 
 their respective jurisdictions, who are to execute the of¬ 
 fice through the entire parish. 
 
 By this act therefore, the appointment of overseers, 
 and every provision for the management of the poor, was 
 confined to parishes. 
 
 It was decided indeed, that a village having a church 
 of its own, and being held and reputed a parish prior to 
 the 43d Eliz. c. 2., and having all parochial rites and 
 distinct churchwardens, is entitled to the separate govern¬ 
 ment and maintenance of its poor within the meaning of 
 the act, although it in fact constitutes part and parcel of 
 a rectory (1) or parish (2), to the parson of which the 
 tithes are payable. For the statute entrusts the admini¬ 
 stration of the poor to the churchwardens and overseers; 
 but the churchwardens of the parish are not in these in¬ 
 stances churchwardens of the village; the act, therefore, 
 must be supposed to refer to such places as were reputed 
 parishes at the time it was enacted, the churchwardens 
 of which were to meddle with the church there , and by 
 consequence with the poor. 
 
 (1) Hilton v. Pawle, Cro. Car.92. (2) Nicholas v. Walker, Cro. Car. 
 
 W. Jones, 356. Hutt. 93. s. c. 394. 2 Roll. Abr 66. 
 
 But 
 
I 
 
 are to be appointed . i) 
 
 But the words of the statute could not be pushed to a IW extend 
 more extended construction. A vill not being a parish by paUsh^by 
 reputation prior to 43d Elizabeth, and having no distinct reputation, 
 churchwardens, but performing its parochial rites, such 
 as marriages, burials, &c. subsequent to that act in the 
 parish church, was adjudged to be within the parish, 
 although it had made poor rates since the statute, and 
 had possessed a chapel previous to the act being passed. 
 
 For making rates will not make it a parish without all 
 other parochial rites. (1) 
 
 rA fW v r ' v - f . | 
 
 ' * - * i 
 
 Two inconveniences followed from the provisions of 
 the statute, being confined to parishes: — 
 
 1. Many considerable districts in the kingdom, more inconve- 
 especially forest and abbey lands, were not situated within ^ 
 
 any parish; and consequently their poor could reap no c - 2. 
 benefit from the act. No settlement could be gained 
 there, no rate made, and persons who became chargeable 
 to other parishes without having acquired a settlement, 
 could not be removed back to be there supported. (2) 
 
 2. Several parishes, particularly in the northern parts 
 of the kingdom, were of such great extent as to render 
 it difficult to fulfil the purposes of the act within such 
 extensive limits. Overseers being appointed for the 
 whole parish, could neither inspect the wants nor the 
 conduct of a numerous poor, spread over a district, 
 many miles in circumference. The same circumstance 
 threw considerable difficulty in the way of making and 
 collecting an equal rate. 
 
 / 
 
 To remedy this, it was provided by 13 and 14 Car. II. Remedied 
 c. 12. s. 21., which, after reciting, that “ whereas the in- Car! 
 
 “ habitants of Lancashire, Cheshire, Yorkshire, North- 
 
 (1) Rudd v. Foster, 4 Mod. 157. (2) Dolting v. StokeLme, Fort. 219. 
 
 2 Salk. 601. Bridewell v. Clerkenwell, 2Salk.486. 
 
 Dean v. Linton, lb. 487. 
 
 <e umber- 
 
 \ 
 
io Of the Local Divisions for which Overseers 
 
 44 umberland, the bishoprick of Durham, Cumberland, 
 44 and Westmoreland, and many other counties in England 
 66 and. Wales , by reason of the largeness of the parishes, 
 44 cannot reap the benefit of the said act of the 43d Eliz.” 
 enacts, 44 that all and every the poor, .needy, impotent, 
 44 and lame persons, within every township or village 
 44 within the several counties aforesaid, shall be inain- 
 44 tained, provided for, and set on work within the se- 
 44 veral and respective townships and villages wherein he 
 44 shall inhabit, or wherein he was last lawfully settled; 
 44 and there shall be yearly chosen and appointed two or 
 44 more overseers, within every of the said townships or 
 44 villages respectively.” 
 
 Extends to This act, from the superadded words, 44 many other 
 all counties. « coun ties in England and Wales,” was held to extend 
 throughout the kingdom, notwithstanding the particular 
 enumeration in the preamble, and a reference to them in 
 the enacting clause, the counties specified being consi¬ 
 dered as put by way of instances. (1) 
 
 2d, To ex- It was also held by a liberal and remedial construction 
 p r iaces° Chlal ^ ie worc ^ s 44 every township and village,” that not 
 only parishes of an inconvenient magnitude might be 
 subdivided under the statute, but that overseers mi edit 
 be appointed for such towns and vills as were extra- 
 parochial (2). 
 
 *' 1 • 
 
 But only 
 to vills or 
 townships. 
 
 Under the words of the act, however, overseers can 
 only be appointed for a place which is either actually or 
 by reputation a vill or township (3), or an hamlet, 
 
 which 
 
 (1) Dolting v. Stokelane, Fort. 219 - 
 Rex v. Justices of Middlesex, i Bot, 34. 
 PI. 5 6. Clifton v. Churcham, And. 314. 
 But the contrary had been decided so 
 early as 27 Car. II. in Skillington v. 
 Norton, 2 Lev. 142. 
 
 (2) Dolting-y. Stokelane, Fort. 219. 
 Rex v. Rufford, 1 Str.512. 
 
 (3) Rex <i>. Justices of Bedfordshire, 
 Cald. 167. Rex v. Showier & Atter, 
 3 Burr. 1391. Rea v. Ryfford, 2 Str. 
 1143. an d several other cases. But 
 
 Lid die- 
 
are to be appointed. 
 
 which in common acceptation is considered as synoni- 
 mous'(i). An appointment therefore of overseers 44 for 
 44 the precinct of the Tower, otherwise called the parish 
 44 of St. Peter’s, ad vincula within His Majesty’s tower 
 44 of London,” was quashed as bad. For it is not good 
 as an appointment tbi a parish, under the words 44 other- 
 44 wise called the parish of St. Peter ad Vincula,” inas¬ 
 much as the name or description which precedes an 
 44 otherwise called ,” is to be considered as the true one, 
 and not the name and description which follows it (2). 
 Neither is it good as as an appointment under 138: 
 14 Car. 2. c. 12. For precinct is a word of ambiguous 
 signification; it is not a boundary of any parish or vill; 
 it may be more than a parish or may be less; and the 
 court ought not to intend that it is a township or vill, 
 in order to make an appointment good that is not war¬ 
 ranted by the statute (3). 80 an order of removal to 
 
 44 a certain extraparochial place called Brewcomb’s 
 44 Lodge,” is bad, for the court cannot intend it to be a 
 vill. (4) 
 
 Some questions have arisen as to what is a township what is a 
 or vill within the meaning of the act. Lord Liardwicke townsh, P ■ 
 observes, that it is difficult to define exactly what is a 
 township or village, and that it must be left to the judg¬ 
 ment of the court upon the case stated (5). According to 
 
 Liddleston v. Mayor of Exeter, Foley 
 19. seems contra. 
 
 (1) Rex «v. Morris, 4 Term Rep. 
 550. And see the opinion of Probyn 
 J. Rex <v. Welbeck, 1 Bott,34. PI. 55. 
 
 (2) It is held in conformity to this 
 
 rule, that the addition of a person in¬ 
 dict'd must precede the otherwise 
 called John Fassel’s case, C10. Eliz. 
 5 t' 3 - 3 Bulst. 296. Semple's case, 
 
 Leach, Cro. Cas. ^26. 
 
 (3) Rex v • Severn Sc Arnold, Say. 
 278, 4 Burn J. Overseer,sect. I. But 
 see Liddleston v. Mayor of Exeter, 
 at supra. 
 
 (4) Dolting <v. Stokelane, lit supra. 
 But it is observed there by Parker, 
 C. J. that “ if it were said at Brew- 
 comb Lodge, generally and no more, 
 that might be intended a vill;” and 
 if a place be named generally, it shall 
 be taken to be and intended a vill. 
 So ihe law intends every parbh to be 
 a vill until the contrary is shewn. 
 Cooke v. Hundredors of P'mhill, 
 8 East, 113. Adjudged, Vinkeston v. 
 Ebden, 2 Salk. 501. 
 
 (5) Rex v. Denham, Burr. S. C. 
 
V 
 
 12 
 
 Of the Local Divisions for which Overseers 
 
 If there is a 
 constable. 
 
 The number 
 of houses. 
 
 Lord Coke, there cannot be a town in law unless it hath< 
 or in time past hath had, a church and celebration of 
 divine service, sacraments, and burials (i). These cir¬ 
 cumstances may form a decisive criterion when the 
 chapel is in its nature parochial (2). But as the words 
 44 township and village’’ are used in the statute to de¬ 
 note subdivisions of a parish which has usually no more 
 than a single church, and also extraparochial places in 
 forests and elsewhere, which are often without one, a 
 church and celebration of service can hardly be consi¬ 
 dered as indispensable to distinguish the constitution o 
 these local divisions, so far as respects the settlement 
 and relief of the poor. Mr. J. Buller states one crit erion 
 to be, 44 that where there is a constable there is a town- 
 44 ship; for they may be a constable for a larger dis- 
 44 trict, but not for a smaller, and' that the doubt in 
 44 many of the cases has arisen where there was no con- 
 
 J 
 
 44 stable (3).” Mr. J. Lee expressed a similar opinion 
 in a former case (4). The rule is the same in places where 
 they have tythingmen and no constable (5). Earlier 
 cases state, that in order to render an extraparochial 
 
 (1) Lord Coke defines it thus: 
 Villa est ex pluribus mansionibus vici- 
 nata et collata ex pluribus vicinis. 
 I Inst. 115. b. and the authorities there 
 cited. Spelman states its more modern 
 signification to be plurium mansionum 
 connexio. 
 
 (2) See Rudd v. Morton, 2 Salk. 
 501. This remark is not meant to 
 extend to extraparochial places an¬ 
 ciently appropriated for ecclesiastical 
 and similar institutions which originally 
 formed no part of the civil divisions of 
 the country, and to which the laws 
 that provide for the poor seem not to 
 be designed originally to extend. Such 
 are the sites and areas of cathedrals, 
 colleges and inns of court. See Rex 
 v. Justices of Peterborough, Cald. 238. 
 
 (3) Rex v. Sir Watts Horton, 
 I Term Rep.374. 
 
 (4) Rex v. Denham. Burr. S. C. 
 
 35 - 
 
 (5) Waldron’s case, 1 Mod. 78. But 
 there must be a distinct constable for 
 the vill or tithing. For Lord Hale 
 observes, “ the parish of A. may con- 
 “ tain the vills of A. B. Sc C., that is, 
 “ where there are distinct constables 
 “ in every one of them. But if the 
 “ constable of A. doth run through 
 “ the whole, then is the whole but 
 “ one vill in law. Or where there is 
 “ a tithingman, it may be a vill; but 
 “ if the constable run through the 
 ** tithing, then it is all one vill.” Ibid, 
 see also Green v. Proud, 1 Mod. 117. 
 
 place 
 
 
arc to be appointed, 
 
 place subject to the poor laws, it must consist of more 
 than two houses. (i) 
 
 For the definition of a vill or township, is a place con¬ 
 sisting of many mansions and many neighbours (2), or 
 according to Lee J. it corresponds to the legal notion of a 
 tithing (3). The reasoning of the judges in these cases 
 seem to regard the state of the place at the time when 
 overseers are to be appointed, as the material circum¬ 
 stance, instead of its ancient condition, for they assign 
 as a reason why there must be more than two house¬ 
 holders to bring the place within the act, that otherwise 
 the same persons would be overseers for life. (4) 
 
 But the court in mare recent determinations consider 
 the ancient condition of the place as that to which the 
 act meant to refer; and therefore overseers may be 
 appointed for a vill by reputation, although there exist 
 but two houses when the appointment is made (5). Yet 
 whether more houses than two are not necessary to con¬ 
 stitute a vill, where no other facts exist to prove it a vill 
 by reputation, seems undecided. (6) 
 
 Towns and vills, being ancient divisions of the country, 
 may be proved by different sorts of evidence, like any 
 
 (1) See the opinion of Parker, C. J. 
 Dolting v. Stokelane, ut supra. Of Ld. 
 Hardwick, C. J. Rex v. Denham, ut 
 supra. Per Lee, C. J. Rex. v. Wel- 
 beck, 1 Bott, 33. PI. 55. But Lord 
 Mansfield expressed some doubts of 
 this. Rex i>. Eyford, Cald. 542. 
 
 (2) Ante, 12. n. (1). 
 
 (3) Rex -v. Denham, ante,11- 11.(5). 
 
 (4) Dolling -v. Stokelane, Fol. 98. 
 I Bott,32. notes.Rexv. Denham, ante, 
 n. ( 3 ) Where Page, J. delivers it as 
 his opinion, “ that a single house or two 
 
 houses cannot amount to the notion 
 
 4 
 
 “ of a township or village. If it had 
 “ been formerly a town, and the houses 
 “ were in fact decayed and gone, it 
 “Would cease to be a town or village.” 
 But see Lord Coke’s opinion, contra, 
 post. 11.(5). 
 
 (5) Rex v. Eyeford, Cald. 542. Rex 
 v. Ronton Abbey, 2 Term Rep. 207. 
 Rex 1/. Stubbs, 2 Term Rep. 406. This 
 conforms to Lord Coke’s opinion, that 
 “ if a town is decayed so as no houses 
 remain, yet it is a town in law. 1 Inst. 
 115. b. 
 
 (6) Ibid. 
 
 other 
 
 Townsh 
 &c. how 
 proved. 
 
T 4 
 
 Determina¬ 
 
 tions. 
 
 
 X 
 
 Of the Local Divisions for' which Over % seers 
 
 other facts. The true point being, whether the place in 
 question has been treated, as a vill or township, or at 
 least reputed to be so? If a place has a constable, it is 
 decisive evidence that it was so considered from time 
 immemorial. But it is not the sole proof, because the 
 appointment of a constable is not essentially incident to 
 the existence of a township. The number of houses, or 
 rather of families, may have been the original reason for 
 giving this denomination to a particular place. But al¬ 
 though this fact may be used as a ground from whence the 
 existence of a township may be inferred, it is net equally 
 decisive with the appointment of a constable, for the 
 number of houses may have increased or diminished from 
 accidental circumstances long after the division had taken 
 place. It is sufficient therefore if it be shewn to have 
 been a vill by reputation, as where it has formerly had 
 overseers, who received paupers and granted certifi¬ 
 cates and the like (i). When that is shewn, an extra- 
 parochial place may be deemed a vill, though consisting 
 of only two (2) or three houses (3), as where it is not so 
 it has been adjudged not to be a vill, although it compre¬ 
 hended many mansions (4). 
 
 / * 
 
 Thus an extraparochial manor, once consisting of a 
 capital mansion and three keepers’ lodges in the park, the 
 park being since converted into farms, of which there are 
 five; each having a dwelling-house occupied by a different 
 tenant, was held not to be a vill, never having been re¬ 
 puted as such, or having had an overseer (5). In adhe¬ 
 rence to the same rules, an hamlet, consisting of one 
 
 (1) Rex <v. Eyeford, Oald. 542. 
 But a voluntary relieving of the poor 
 does not seem sufficient. See Rex v. 
 Peterborough, Cald. 238. 
 
 (2) Rex v . Eyeford, supra, n. I. 
 
 (3) Rex v. Ronton Abbey, supra. 
 
 (4) Rex -v. Justices of Peterbo¬ 
 rough, Cald. 238. 
 
 (5) Rex v. Grafton, Bur. Set. Ca. 
 101. This case was decided with¬ 
 out argument, and is so referred to 
 by Lee C. J. Rex v. Welbeck, 
 iBott, 33. PI-55. But it is cited as 
 law by Aston J. Rex v. Tamworth, 
 Cald. 28. 
 
 Rouse 
 
 12 
 
are to be appointed. 
 
 house and three or four hundred acres of land, being part 
 of a parish, and paying to the church rates thereof (i); 
 an extraparcchial place, consisting of* two houses and 
 three hundred acres of land, belonging to and in the oc¬ 
 cupation of several persons (2); one consisting of a farm, 
 and capital messuage, inhabited by the tenant of the 
 whole, a tenement part thereof inhabited by a poor widow 
 and her five children, with three cottages (two ancient and 
 one lately built), which are under-let by him to his la¬ 
 bourers (3); a capital mansion house and large farm house 
 thereto belonging, of the value of 200I. per year, with three 
 other farm houses and farms belonging to each, worth to¬ 
 gether 500I. a year, and containing within it four substan¬ 
 tial householders, but being extraparochial, and never re¬ 
 puted a vill, nor having a constable belonging to it (4). 
 The extraparochial sites and areas of ancient cathedrals 
 and colleges—inns of court, though consisting of many 
 tenements (5), never having appointed overseers, nor been 
 reputed townships, but having a private chapel not under 
 the bishop’s jurisdiction, and without chapel wardens, do 
 not come within the operation of the poor law. 
 
 The court of quarter sessions has no power to divide a Townships, 
 parish into townships, by an original order (6), or to erect 
 
 (1) Rex v. Tamworth. Cald. 28. 
 
 (2) Rex v. Denham. Burr. Set. 
 Ca. 35. 
 
 (3) Rex v. Showier & al. 3 Burr. 
 1 39 I 2 3 4 5 * 
 
 (4) Rex v. Justices of Bedford¬ 
 shire. Cald. 167. 
 
 (5) Rex v. justices of Peterborough, 
 Cald, 238. It was stated in the case that 
 Peterborough Minster was an extrapa¬ 
 rochial place, containing upwards of six¬ 
 ty acres of ground, upon which were 
 twenty-five dwelling houses at least, 
 besides poor houses, of the annual 
 value of 40I. ; that these houses were 
 
 inhabited, except in the instance of 
 the bishop and three of the prebendal 
 houses, by laymen or strangers to the 
 cathedral, mostly persons of fortune, 
 who kept servants that acquired set¬ 
 tlements therein. The poor had been 
 supported by the dean and chapter, 
 and not by the inhabitants, and 
 there was neither constable, overseer, 
 churchwarden, or other civil officer 
 appointed for the precinct. 
 
 (6) Rex v. Flag, Fol. 8. 1 Const. 
 Peart v. Westgarth, post. 16. n. (4). 
 Rex v. Uttoxeter, Cald. 86. 
 
 a vill 
 
 \ 
 
1 
 
 1 6 
 
 independent 
 
 districts. 
 
 When ex- 
 trapar chial 
 places. 
 
 % 
 
 To divide a 
 parish. 
 
 ~ i 
 
 nf 
 
 u j 
 
 £h* Local Divisions for which Oversews 
 
 a vill into an independent district, which shall maintain 
 its own poor. It is dene hy two magistrates,- appoint¬ 
 ing overseers, in the same manner as those officers are 
 
 appointed for districts which have sustained their poor 
 since the statute passed. 
 
 / 
 
 Where a vill or township is extraparochial, this is a 
 matter of course (i). It seems to have been decided that 
 the appointment must expressly call it a township or vill, 
 or the court will not intend it so. (2) 
 
 But magistrates do not usually interfere in the first in¬ 
 stance to divide a parish into townships, where it has pre¬ 
 viously maintained its poor in the aggregate. It is more 
 prudent to take the opinion of the court of king's bench 
 in another shape, as to the expediency of doing^so before 
 they bring a measure into effect, which may be attended 
 with some responsibility. 
 
 To divide a parish into districts two things are neces¬ 
 sary, 1 st, It should consist of two or more distinct vills or 
 townships, such as have been described (3). 2d, It must 
 
 appear that the parish cannot otherwise conveniently enjoy 
 the benefit of the 43d Eliz. c. 2. (4) 
 
 For where a parish had two overseers appointed for the 
 whole parish, and but one rate; each overseer collected 
 
 (1) Rex v. Ronton Abbey, 2 Term 
 Rep. 207. 
 
 (2) Rex v. Severn and Arnold, 
 Say. 278. But see Dolting v. Stoke- 
 lane. Fort. 213. Fol. 98. Vinkes- 
 ton v. Ebden, 2 Salk 501, ante, 11. 
 n. (4). There seems to be a mis¬ 
 take in the report in Sayer. Den¬ 
 nison J. is made to say, “ But as it is 
 “ not expressly called a township or 
 
 vill in the appointment, the court 
 “ ought” [not] “ to intend that it is a 
 “ township or vill in order to make an 
 Ci appointment good which is not war- 
 
 “ ranted by that statute.” The word 
 not is omitted where it is here inserted 
 in italics, and seems to be required by 
 the obvious sense of the passage. 
 
 (3) Rex v. Justices of Middlesex, 
 I Const. 39. FI. 62- Skillington v. Nor¬ 
 ton, Freem. 4x2. 
 
 (4) Per Lord Mansfield, Peart *». 
 
 Westgarth, 3 Burr. 1610. 1 Bott, 
 
 37. PL 59. Rex -v . Uttoxeter, 
 Doug. 246. Cald. 84. S. C. 1 Bott, 
 41. PI. 62. Per Grose" J. Rex. v» 
 Newell, 4 Term Rep. 266. 1 Bott, 
 
 58. PI. 69. 
 
 and 
 

 are to be appointed. j y 
 
 and payed within his own division; at the end of the 
 year if there w r as a surplus in the hands of either, so 
 much was paid over to the other as to make bothequal; 
 ancTTHere w'as but bne~workhouse which the overseers 
 looked over by turns weekly. The court refused a man¬ 
 damus to appoint separate overseers for a township, con¬ 
 stituting part of the parish. For w hat, is stated shews 
 that the parish can do very well under 43 Eliz. c. 2. 
 without resorting to 13 & 14 Car. II. c. 12. “ To bring 
 
 it w ithin the latter statute, t hey must shew it to be a 
 <c distinct vill; we expected they would have shown that 
 u the y halT separate* * overseers, had maintained their 
 “ poor separately, and had a separate rate.” (1) 
 
 The inability of a parish to sustain its poor under the inability as 
 
 ** t a utinsh 
 
 provisions of 43 Eliz. is a fact which should be distinctly must appear, 
 stated, and may be ascertained by various circumstances. 
 
 If one or more townships in the same parish are already 
 separated, and provide for their own poor separately, it 
 proves decisively that the parish cannot maintain their 
 poor as a parish, and consequently cannot have the bene¬ 
 fit of the statute (2). Another material ingredient to 
 establish this point, although it is not so decisive a cri¬ 
 terion, is the customary appointment of more than four 
 overseers. (3) 
 
 In some cases the court expressed an opinion that the Doubts as 
 policy of 13 & 14 Car. II. c. 12. was mistaken, and that X3&14C* 
 the divisions ought rather to be enlarged than diminished. c * IZ ' 
 
 Thus where it was found by a special verdict, that the Inability 
 parish of Stanhope in the county of Durham, being 20 Efficiently \ 
 miles long and 8 broad, maintained its own poor by a shewn. 
 
 • 
 
 (1) Rex v. Justices of Middlesex, (3) Per Buller, J. Rex v. Sir 
 
 I Bott, 34. PI. 56. Watts Horton, i Term Rep. 374- 
 
 (2) See the opinion of Buller, J. Per Lord Kenyon, C. J. Rex u. 
 
 Rex v. Sir Watts Horton, post. (3). Newell, 4 Term Rep. 266. 
 
 vol. 1. c general. 
 
 # 
 
Of the Local Divisions for which Overseers appointed, 
 
 general rate, and had one joint appointment of four over¬ 
 seers, who, with the four churchwardens, (one of each 
 being respectively nominated out of each of four quarters 
 or districts into which the parish was subdivided,) collec¬ 
 ted the poor’s rate in the districts where they severally 
 resided, but under one entire assessment for the whole 
 parish, and carried it to one general fund for the joint 
 relief of all the poor. This practice continued from 43 Eliz. 
 until the midsummer quarter sessions for the county, 
 9 Geo. I. when the sessions ordered upon motion, that 
 “ the several townships or constableries within the parish 
 u should separately maintain their own proper poor.’" 
 Since that time each of the quarters or districts had over¬ 
 seers separately appointed, and separately maintained its 
 poor; and orders of removal were made from one quarter 
 to another, and appeals heard and decided thereon. 
 But about 12 years before the present question arose, two 
 townships or constableries belonging to one of these quar¬ 
 ters separated themselves from the remainder thereof, and 
 have ever since maintained their own poor separately. 
 The question was, whether the several places or districts 
 were one entire parish, town, township or village, within 
 the 13 St 14 Car. II. c. 12. The court were of opinion 
 after two arguments, that to subdivide a parish it should 
 appear that there was an inability in the parish to have 
 the benefit of the act of 43 Elizabeth; that no such 
 inability appeared, but quite the contrary for above one 
 hundred and twenty years, so that there is no foun¬ 
 dation for the division: that the acquiescence under the 
 division by the order of sessions, was upon a false notion 
 that the sessions had power to make it, which they had 
 not; for it was a mere nullity, not being made upon 
 appeal, but upon a motion on behalf of one of the quar¬ 
 ters and opposed by the other; and there is no incon¬ 
 venience in setting right this wrong usage which had 
 obtained for 40 years, but cannot vary the right. (1) 
 
 (1) Peart v. Westgarth, 3 Bprr. 1610. and see Rex v, Beeding, Cald. 90. 
 post. 23. 
 
 So 
 
Parishes , token subdivided . to 
 
 \ 
 
 So where a parish five miles in length and five in Inability 
 breadth, contained five townships, Uttoxeter, Crake- not sheu n * 
 marsh, Creighton, Stramshall and Loxley, which jointly 
 maintained their poor until 1730. From 1643 to 1703 
 two overseers were elected for Uttoxeter, one for Loxley, 
 one for Crakemarsh, Creighton and Stramshall, and one 
 for Woodlands, which is part of the township of Uttoxe¬ 
 ter. From 1703 to 1727 only two were elected for the 
 parish. In 1730 a rate for the whole parish was signed 
 by two justices, in pursuance of a mandamus. In 1731, 
 upon appeal by three townships, against a rate made for 
 the whole parish, an order of sessions quashed the assess¬ 
 ment, so far as it charged the inhabitants of those town¬ 
 ships in respect of property situated there, towards the 
 maintenance of the poor of the parish, and this prat of 
 the order was afterwards affirmed in the court of king’s 
 bench. In 1733 a mandamus issued, directing the ap¬ 
 pointment of two or more overseers for the parish. In' 
 
 1734 two overseers were appointed by separate appoint- v 
 
 ments for each township. These appointments were 
 removed the next term by certiorari into B. R. and 
 affirmed, no opposition being made; since when separate 
 overseers had been appointed for each township, and 
 they had separately maintained their poor. An ap¬ 
 pointment of distinct overseers for these townships was 
 confirmed at sessions, subject to a case, which stated these 
 facts. Being removed into the king’s bench, the court 
 quashed the order of confirmation. For though there 
 were separate overseers from 1643 to I 7°3> y et all the 
 townships, during that period, jointly relieved their pool’, 
 and a subsequent acquiescence in the contrary for 40 
 years will not alter the law. The confirmation of the 
 appointments in 1734 was of no authority, the question 
 not having been raised; and the inability to receive the be¬ 
 nefit of the act must appear, which is not here shewn. (1) 
 
 (i) Rex Uttoxeter, Doug. 346. Call 84. 
 
 C 2 
 
 
 The 
 
16 
 
 Removals 
 fromdistricts 
 to other pa¬ 
 rishes, &c. 
 
 Of the Local Divisions for which Overseers appointed. 
 
 The parish of St. Giles, Reading, consists of one 
 district, situate within the borough of Reading, and of 
 another situate within the hamlet of Whitney, which lies 
 without it. There is but one church, but the hamlet had 
 a constable and churchwardens from time immemorial, 
 and separate overseers from 1648. These districts made 
 separate rates as far back as evidence went; but in con¬ 
 formity to an order of sessions made in 1649, one them 
 paid three eighth and the other live eighth parts to the 
 whole expences of the poor of both parts of the parish, 
 the whole expences when incurred, being computed into 
 one integral sum. The overseers for each, after relieving 
 their own poor, accounted with the other reciprocally for 
 any surplus or deficiency in their proportion. The over¬ 
 seers for W. relieved their own poor separately, and kept 
 separate accounts, which were separately allowed by two 
 justices. Certificates had been granted by W. and other 
 parishes had removed paupers thither, and received them 
 thence, but this did not appear to have taken place as 
 between the hamlet and the rest of the parish. For 
 several years the poor had been jointly maintained in a 
 poor-house to which the hamlet and borough part of the 
 parish contributed in the stipulated proportion of 5 to 
 3, and the inhabitants of the hamlet have constantly 
 attended the vestry-meetings of the parish. 
 
 Per Lord Kenyon C. J. On the facts disclosed in this 
 case, it does not appear that these two districts which com¬ 
 pose one parish cannot have, nor is it stated in point of 
 . fact that they have not had the benefit of the 43 Eliz. 
 but on the contrary, almost every fact in the case goes to 
 establish this point, that they have squared their conduct 
 rather by that statute than by the statute 13 & 14 Car. II. 
 c. 12. For if they had proceeded on the latter, there 
 would have been no communion between them, and they* 
 would have acted to all purposes, as if they had been 
 perfectly distinct parishes. It is indeed stated, that there 
 
 have 
 
Parishes , •when subdivided. 
 
 2 
 
 have been removals to Whitney from several different pa¬ 
 rishes; but it is not pretended that there ever was one 
 from St. Giles’s Reading. — Probably -distant parishes 
 may have been deceived by these districts having separate 
 overseers, and have concluded from thence that they were 
 separate parishes; but their misconception cannot vary 
 the case.— The materialTfacts in this case are all included 
 in those few lines which follow the order in 1649. — To 
 that order I only refer as 4 date in the case; fgr it is ex¬ 
 trajudicial: but it is stated, that <c ever since that order was 
 made, the directions contained in it have been observed 
 by the two parts of the parish of St. Giles, in regard to 
 the respective contributions to the poor; that they have 
 paid accordingly, the hamlet three-eighths, and the bo¬ 
 rough part five-eighths, of the whole expcnces incurred 
 by the poor of both parts of the parish; the whole eocpences , 
 when incurred , being computed into one integral sum ; and 
 that the overseers of each part have accounts with each 
 other.” Then it appears to have been only one district, 
 affording one integral fund for the poor of both parishes; 
 and that when one part has overpaid its proportion, the 
 other has repaid it; but it was merely for their own con- 
 venience that they have subdivided themselves, as is fre- 
 quently^Ione in other parishes, where one overseer agrees 
 to superintend one part of t he parlsh, ~ and another the 
 rest." ~ But with regard to the proportions, agreed upon 
 in 1649, which each district was to pay, those, indeed, 
 would not be binding at this time, if, upon enquiry, it 
 should appear that they are unequal, considering the pre¬ 
 sent circumstances of the parish. If that had appeared in 
 the case which is attempted to be inferred from it, that 
 these districts cannot reap the benefit of the statute of 
 43 Eliz. c. 2. the objection would be well founded; but 
 it appears that they have had the benefit of that statute. 
 The only circumstance that can bear the semblance of an 
 argument against this decision is, that these districts have 
 had more than four overseers, but that appeared to be the 
 
 e 3 - 
 
 Agreement 
 by districts 
 to pay in 
 proportions 
 how far 
 binding. 
 
22 Of the Local Divisions for which Overseers appointed\ 
 
 case in several other parishes, on a n in quiry directed by 
 £ord Mansfield in Rex?;. Xoxdale; so that though it 
 may be a very material ingredient in these cases, it is not 
 a decisive one. As, therefore, it is not stated as a fact 
 in the case that these districts cannot reap the benefit of 
 the 43d Eliz.; but it appears, on the contrary, from all 
 the facts, considered together, that they had the benefit 
 of it, we should overturn all the authorities, if we w T ere 
 to determine that these districts might now be subdi¬ 
 vided. (1) 
 
 Appoint¬ 
 ment of 
 overseers for 
 40 years in¬ 
 sufficient. 
 
 It may be collected from the foregoing determinations, 
 that the continued appointment of overseers for separate 
 townships for forty years is not a decisive reason for di¬ 
 viding a parish into townships, as being unable to receive 
 the benefit of 43 Eliz. c. 2., and that such an appointment 
 derives no additional validity from a confirmation in the 
 court of king’s bench, unless the court’s attention has 
 been particularly drawn to the point. (2) 
 
 Townships It seems also to have no great weight that the town- 
 in different s }jjp g G f t] ie p ar i s h are situate within different iurisdic- 
 
 jurisdictions. *- x J 
 
 tions(3); or that they have separated in obedience to 
 an order of sessions, which being extrajudicial, is of no 
 authority. (4) 
 
 The court of quarter sessions, upon an appeal against a 
 rate for the entire parish of Beeding, stated the following 
 case: — 
 
 Separation The parish of Beeding is a large parish, part of which 
 iademntfy 0 * s ca ^ e< ^ the tything of Bewbush, which is twenty miles 
 from the parish church, “ and cannot reap the benefit of 
 
 (i) Rex v. Newell, 4 Term Rep. (3) Rex v. Newell, supra. Lane v. 
 266. Cobham, 7 East, 1. 
 
 (a) Rex *y. Uttoxeter, ante, 19. (4) Peart v. Westgarth, ante, 1$. 
 
 See post. 29. Rex v. Newell, supw (1). 
 
 43 Eliz. 
 
Parishes , {when subdivided . 23 
 
 43 Eliz. without inconvenience.” The tything was rated 
 with the rest of the parish in one rate until 1758, when 
 upon an appeal by F. S. against a rate, an order of sessions 
 was made by consent of all parties that the poor’s rate be 
 quashed as to the inhabitants of Bewbush tything, F. S. 
 undertaking to pay the other part of the parish what they 
 had paid in support of the poor of the tything, and also 
 to enter into a bond to the inhabitants of the parish, ex¬ 
 cept the tything, to indemnify them against all charges 
 respecting the poor of Bewbush, the said parishioners 
 undertaking not to include Bewbush in their rate, and 
 that different officers shall and may be appointed for the 
 tything. 
 
 From that time the tything has never been rated to the 
 parish, and has maintained its poor separately. But it 
 did not appear whether the bond had been entered into, 
 or whether any overseer had been appointed, or a poor 
 rate made for the tything until 1772, when the tything 
 was included in a rate made by the parish. 
 
 The sessions having quashed the rate as to Bewdly 
 tything, the court of K. B. quashed their order, and 
 affirmed the rate. The order of sessions is every way 
 wrong. The rate for the whole division could only have 
 been quashed; for it was by agreement only that this se¬ 
 parate division could exist as such, and that agreement 
 could not have that effect, as never having been carried 
 into execution. (1) 
 
 A poor’s rate was appealed against, as being made for Population 
 the township of Beddingtdn, when it ought to have been fndremov* 
 made for the whole parish. The sessions disallowed the between 
 appeal, but stated the following case for the superior tovvnS p$ ’ 
 court’s opinion: 
 
 (1) Rex v. Beeding, otherwise Seal, Cald. 90, 
 
 C 4 * 
 
 Previous 
 
Of the Local Divisions for which Overseers appointed. 
 
 Previous to 1739* the six townships of Beddington pa* 
 rish were united, and the poor were maintained by a rate 
 made on the whole parish by four churchwardens and 
 two overseers appointed for the whole parish. From 
 1739 to 1753 ^ did n °t appear by what rate the poor 
 were maintained, or how overseers were appointed. Since 
 1 753, the parish has been divided into six townships, each 
 of which had separate overseers, and maintained its poor 
 by a separate rate. In 1 798 two orders of removal were 
 made, one from the township of B. to that of N., and the 
 other from that of N. toB., both of which were acquiesced 
 in. The parish is live miles in length and three in breadth, 
 and has rather decreased in population. 
 
 Lord Ellenborough, C. J. Down to the year 1739 it is 
 certain that the parish had the benefit of the stat. 43 Eliz., 
 and it does not appear but that they had the same down 
 to 1753; and since that time it appears that the popu¬ 
 lation of the'parish has decreased: from all which I 
 should be led to conclude, that they might the more easily 
 have the benefit of the statute. I know that different 
 opinions have at different times prevailed as to the better 
 policy of providing for the poor in larger or in smaller 
 districts; but I had rather guide myself by the words of 
 the act of Parliament and by the facts, than by any flue-. 
 tuating policy, which sometimes leans one way and some¬ 
 times another. Whether a parish can or can not have 
 the benefit of the statute, is a fact which the sessions ought 
 to find upon all the circumstances laid before them, and 
 not leave us to presume it how we may (1). Then, have 
 the sessions here found the fact ? or have they stated those 
 facts from whence we must necessarily see that the parish 
 can not have the benefit of the statute ? They have not 
 done either. The case must go back to them to find the 
 fact (2). 
 
 (1) S.P. Per Boiler, J. Rex v. (2) Rex v. Watson, 7 East, 214. 
 Uttoxeter, Cald. 87* But.see post. 27. 
 
 t t - At 
 
I 
 
 Parishes , when subdivided. 
 
 i i ' ^ 
 
 At the Old Bailey, in London, a case was referred to r, ' s / ricts 111 
 
 * , different 
 
 the justices, which was this: — One Fletcher, a widow, counties, 
 having several children by her former husband, who lived 
 in the parish of St. Botolph, without Aldgate, which lies 
 in two counties, viz. London and Middlesex, marries a 
 second husband, and then they put the children to nurse 
 at Enfield, in Middlesex, and then the mother dies, and 
 after her the father-in-law. The nurse applies for money 
 to the parish of St. Botolph, which hath one church¬ 
 warden and several overseers of the poor of the county 
 of Middlesex and city of London, and the parish rates 
 are several. The woman lived and died in that parish 
 which lies in Middlesex, who contended with the other 
 part of the parish in London; and upon application to 
 the quarter sessions in Middlesex, the justices of peace 
 there ordered that that part of the parish which w r as in 
 London should go equal charges in relieving these chil¬ 
 dren ; and that part of the parish which is in London, 
 not satisfied with the order, applied themselves to the 
 gaol delivery at the Old Bailey, and there resolved by 
 Pemberton, C. J. Dolben, and others, justices there, that 
 without any particular usage to the contrary, the parish 
 in both countries ought to contribute their shares towards 
 the relief of the children, because the statute of 43 Eliz. 
 cap. 2. names only parishes. But in regard it was made 
 appear, that each part of the parish had distinct officers, 
 and made distinct rates, and had used, time out of mind, 
 to make distinct accounts to the justices of each county, 
 the court did look upon each division as a separate parish, 
 and therefore ordered, that the part of the said parish 
 which lies in Middlesex shall pay the nurse and provide * 
 for the future for the children. (1) 
 
 It appears from these cases, that a recent separation Recent se- 
 between the component townships of a parish, is not ^eriTl.'™ 
 
 (1) Sir '1 . Raym. 476. The an- by Lord Kenyon, C. J. Rex v, Newell, 
 thoiity of this decision is recognized 4 Term Rep. 266. ante, 22. 
 
 considered 
 
26 
 
 Fa&s neces¬ 
 sary to sepa¬ 
 rate town¬ 
 ships origi¬ 
 nally united. 
 
 Long sepa¬ 
 ration mate¬ 
 rial. 
 
 Recent opi¬ 
 nion as toy o- 
 licy. 13 & 
 
 14 Cni. 2. 
 
 C. 1,2. 
 
 Of the Local Divisions for which Overseers appointed. 
 
 considered as near so convincing a proof of its inability 
 to reap the benefit of the statute, as the antecedent main¬ 
 tenance of its poor as a parish before and after the 13 & 
 14 Car. II. c. 12. is, that it may still continue to do so 
 without having recourse to the latter act. 
 
 To enable the townships of a parish, therefore, to se¬ 
 parate from each other, where it appears that the parish 
 has had the benefit of the 43 Elizabeth, it Riust be shewn, 
 that from an increase of population, or some other cause, 
 it is impossible that they can continue to reap the benefit 
 of that statute. (1) 
 
 A long separation of distinct vills, and their being in 
 the habit of managing and supportirig~tReir poor exclusive 
 and independent of each other by distinct officers, and 
 by a separate rate^'is the best and most decisive evidence 
 of the necessity of recourse to the 13 & 14 Car. II. c. 12. 
 
 Also where a parish 5 miles in length and 4 in breadth, 
 consisted of 8 townships, and that of Euld being one for 
 60 or 70 years ( and before for any thing that appeared to the 
 contrary ) had separate overseers, a separate constable, and 
 separately maintained its own poor, and in one case a 
 pauper was removed from the parish to this township 
 without an appeal, the court affirmed an order of sessions 
 quashing a rate made for the entire parish. (2) 
 
 The judges in one case intimated, that notwithstanding 
 what had been laid down in Peart v. Westgarth (3), 
 that the 13 & 14 Car. II. had proceeded upon an erro¬ 
 neous policy, it was their opinion that the poor were 
 better maintained in small districts, where officers are 
 more attentive to their duty, than in large ones. (4) 
 
 They 
 
 (1) Per Ashhurst, J. Rex v. Leigh, 
 3 Term Rep. 746. And see the opinion 
 of Buller, J. Rex v. Sir Watts Horton, 
 ante, 17, 
 
 (2) Rex-y. Leigh,3Term Rep.746* 
 
 (3) Ante, 17,18. 
 
 (4) Rex v. Leigh, supra. But the 
 opinion of Lord Mansfield is contrary. 
 
27 
 
 Parishes , •when subdivided. 
 
 They remarked also in furtherance of this principle, Parishes 
 
 J . . • , c Q may be still 
 
 that wherever parishes come •within the reason ot 13 ot ^divided. 
 14 Car. II. they may be still subdivided without regard 
 to their former ability to reap the benefit of the 43 Eliz. 
 except so far as it may affect the proof of their present in¬ 
 ability, in the manner already stated. Or as it is expressed 
 by Mr. J. Buffer, “ Though it should appear that a parish 
 “ had enjoyed the benefit of the 43 of Eliz. yet if they 
 “ could not now conveniently maintain their own poor 
 “ jointly, we would permit them to divide themselves, it 
 “ it contains such legal divisions as will admit of it.” (1) 
 
 But in one case, where the quarter sessions found that 
 the parish could not reap the benefit of the statute with¬ 
 out inconvenience, the court of king’s bench laid no 
 stress upon the circumstance. (2) 
 
 Where a parish consists of several townships, some of 
 which are actually separated, and have distinct overseers 
 under 13 & 14 Car. II. the Court will consider the re¬ 
 mainder as entitled to have distinct officers appointed, 
 whenever they think proper to apply. (3) 
 
 \ 
 
 each of which had immemorially a se¬ 
 parate .constable ; two of them from 
 time immemorial, and Ashworth, for 
 70 years, had separate overseers. Be¬ 
 fore the separation of Ashworth, there 
 was a joint appointment of six and 
 afterwards of five overseers, for the 
 remaining townships, for which one 
 general rate was made, but each over¬ 
 seer acted within his own township, 
 and at the end of the year there was 
 a general settlement, and the ex- 
 pences borne equally by all, It was 
 further sworn, that the parish could 
 not reap the benefit of the statute,on 
 account of its largeness and great po¬ 
 pulation. Rex v. Sir Watts Horton, 
 
 I Term Rep. 374. 
 
 But 
 
 Rex -y. St. Peter & St. Paul’s, Bath. 
 Cald. 213. post. & see that of Lord 
 Ellenborough, Rex v. Watson, 7 East, 
 217. ante, 24. 
 
 (1) Rex *y. Leigh, Ibid. But see 
 ante, 24. 
 
 (2) Rex v. Beeding, ante, 25. See 
 also the opinion of Lawrence, J. Rex 
 v. Watson, 7 East, 217. The legisla¬ 
 ture seems to have been in favour of 
 the policy of maintaining the poor by 
 large districts if we can draw a conclu¬ 
 sion from the statute, which enables 
 parishes to unite in maintaining their 
 poor. 
 
 (3) It appeared by the affidavits 
 for the rule, that the parish of Mid¬ 
 dleton consisted of eight townships, 
 
 % 
 
2 $ 
 
 Of the Local Divisions for which Overseers appointed. 
 
 But although a parish has resorted to the provisions of 
 13 & 14 Car. II. c. 14. and maintained its poor by se- 
 division parate districts, it is competent to the parish to cease 
 when made. ac ^[ U g under the stat. of Car. II. and to recur to the pro¬ 
 vision of the 43 Eliz. Formerly the court did not seem 
 inclined to disturb the ancient separation of parishes into 
 townships, although a reunion might enable the parish to 
 support its poor with more convenience. Lord Kenyon 
 stating that 44 the question is, whether at .the time of 
 44 passing the statute of Charles the 2d, the district was 
 44 in a situation to receive the benefit of the 43d Eliz. 
 44 c. 2. ; for if the parish were properly divided at that 
 44 time, nothing which has happened since will induce 
 44 the court to make any innovationand Mr. J. Buller 
 observing, 44 that though it was, found that it was for- 
 44 merly inconvenient to the parish at iarge to maintain- 
 44 their own poor, and though it was convenient to do so 
 44 now, yet they would not assist in overturning the old 
 44 practice, which might operate to the discouragement 
 44 of individuals in reducing the poor rates in small dis- 
 44 tricts.” (1) 
 
 But this But the court’s power in this respect is altogether a 
 
 question o i q Ues p on open to their discretion, the exercise of which 
 
 must depend upon the facts of each particular case. 
 
 \ , * . ' 
 
 Parish may The competency of the parish to reunite by voluntary 
 reunite. agreement, for the purpose of maintaining its poor by one 
 joint rate, under the management of joint overseers, was 
 determined in the following case : • 
 
 An action of trespass was brought to try whether a rate 
 made by four overseers appointed for the whole parish of 
 Wokingham was good, or whether three several rates for 
 so many divisions of the parish ought not to have been made 
 by separate overseers appointed for each. It was proved at 
 the trial, that from all antecedent time down to the year 
 1773, the parish of Wokingham, which was five miles 
 
 (:) Rex v. Leigh, 3 Term.Rep. 746. Ante, 26. 
 
 15 long 
 
 But the 
 court won’t 
 diiturh tho 
 
Parishes , when re-united. 
 
 long and three broad, had been divided into three dis¬ 
 tricts, each of which had maintained their own poor se¬ 
 parately ; one consisting of the corporate town of Wo¬ 
 kingham, which lies for the most part in the county of 
 Berks, with a small part in the county of Wilts : the se¬ 
 cond, consisting of such remaining.part of the parish as 
 lay in the county of Berks, called the Berks liberty: 
 the third, called the Wiltshire liberty, lying in Wilts. 
 During that time there had always been separate over¬ 
 seers of the poor for each part; two for the town, two lor 
 the Berkshire part, and one for Wilts; separate rates and 
 constables appointed, and there had been removals of 
 paupers, and certificates granted from each of these parts 
 to the other. In 1773 ^ ie town °f Wokingham and 
 the Berkshire district agree to unite, and invited the 
 Wilts district to accede to the union, which the latter did 
 in 1775. For the purpose of sanctioning such union a 
 mandamus was applied for to the court of king's bench, 
 commanding two justices to appoint four overseers for the 
 whole parish (1), to which no opposition or return was 
 made; and from that period to the present time there had 
 always been four overseers and no more appointed for the 
 vrhole parish, who had made one rate, and conformed in 
 all respects to stat. 43 Eliz. c. 2. 
 
 Mr. B. Graham , who tried the cause, was of opinion 
 at the trial that it was competent to the inhabitants of 
 the parish in the years 1773 and 1775, to come to the 
 agreement which they did, (laying no stress on the man¬ 
 damus, which he thought arose out of the agreement) 
 such agreement being in conformity to the general pro¬ 
 visions of the stat. 43 Eliz. for the management of the 
 poor, from which the parish had deviated without autho- 
 
 (1) Tliis is a mistake in the report, rate for the parish. See Rex ■?. 
 the mandamus was to the church- Palmer, 8 East, 416. post. 30. 
 wardens and overseers to make one 
 
 I 
 
3 ° 
 
 Of the Local Divisions for which Overseers appointed 
 
 rity, from that period to the passing of 13 & 14 Car. II. 
 c. 12. s.21. which first sanctioned such a deviation; but 
 that they were not bound to continue under the direction 
 of the latter statute, if in point of fact the parish could 
 avail itself of the provisions of the general antecedent 
 laws, the 13 & 14 Car. II. only applying to such parishes 
 as have not and cannot reap the benefit of the 43 Eliz. 
 and in the present case he thought that the uninter¬ 
 rupted usage for the last thirty years went to shew that 
 the parish could have, because they in fact had it for 
 that time. The jury found for the defendants under this 
 direction; but also found as a fact, that prior to the 
 agreement in 1773—5, the three districts had always 
 maintained their poor separately under separate overseers. 
 
 On a motion for a new trial, the court of king’s bench 
 were clearly of opinion that the question was proper to 
 be left to the jury, and that it was their province to de¬ 
 cide whether the parish, under these circumstances, could 
 have the benefit of 43 Eliz., and there was no evidence to 
 shew they could not, opposed to the weight of usage for 
 thirty years past, to shew that they might have, and 
 actually had enjoyed the benefit of it. That the agreement 
 in 1773—5 shewed that, in the opinion of the parishioners 
 at that period, they might have the benefit of the statute; 
 and it now appeared that they had in fact acted under it 
 ever since. There seemed therefore to be no reason for 
 disturbing the practice which had prevailed for so long a 
 time, or scrutinizing every part of the direction, when 
 the learned Judges’ opinion and the verdict were sub¬ 
 stantially right. (1) 
 
 This case was afterwards brought before the court for 
 a revision of their opinion, in the shape of a motion for 
 a mandamus to two justices of the peace, commanding 
 them to appoint two or more overseers of the poor for that 
 part of the parish of Wokingham which lies in Wilts. 
 
 (1) Lane v. Cobham, 7 East, 1. 
 
 I I 
 
 9 
 
 The 
 
Parishes , t when re-united. 
 
 The affidavits in support of, and against this rule, set 
 forth several circumstances in addition to what appear in 
 the foregoing case, and threw considerable doubt upon 
 the fact, whether these three districts maintained their 
 poor separately, at the time of passing the 13 & 
 14 Car. II. But it is unnessary to state them, beyond 
 what is noticed in the following judgment, pronounced 
 after the court had taken time to consider the case. 
 Lord Ellenborough, C. J. “ This was an application to ap¬ 
 point separate overseers for the three several districts and 
 divisions within the parish of Wokingham, in the seve¬ 
 ral counties of Berks and Wilts, under the stat. 13 & 
 
 , 14 Car. II. c. 12. s. 21. upon the alledged ground, that 
 the inhabitants of that parish u had not nor could ” reap 
 the benefit of the stat. 43 Eliz. Whether the parish had 
 or could have the benefit of stat. 43 Eliz. at the time 
 of the passing of the stat. 13 & 14 Car. II. appears 
 doubtful upon the evidence laid before us in the affidavits 
 on both sides. From the bonds of indemnity given by 
 one part of the parish to another during the early part of 
 the 17th century, prior to the year 1638, it is clear that 
 the whole parish did not then maintain its own poor 
 jointly, and as a parish . In the year 163 8, which is a 
 period nearest to the year 1662, the date of the statute 
 13 & 14 Car. II., it appears that the sessions made an 
 order for a joint rate, and if that order had been obeyed, 
 (as in the absence of contrary evidence it may be pre¬ 
 sumed to have been,) the' mode directed by the 43 Eliz. 
 was more likely to have been acted under and at immedi¬ 
 ately after the time of passing the stat. of Charles, than 
 any other less authorized mode of maintaining their poor. 
 But supposing it were otherwise in point of fact, and that 
 the parish, at the time of passing the statute of Ch. IL 
 was not in a situation conveniently to reap the benefit of 
 the stat. 43 Eliz. i. e . by a joint parochial rate for the 
 maintenance of all its poor, under the joint management 
 of not more than four overseers in the whole; and sup¬ 
 posing 
 
Of the Local Divisions for which Overseers appointed . 
 
 posing the poor to have been immediately thereafter 
 maintained by three separate districts and divisions, as it 
 is now sought that they should be, the question is, 
 whether it were not competent to the parish, if they found 
 it more convenient so to do, to cease acting under the 
 stat. of Charles II., and to recur to the provisions of the 
 stat. 43 Eliz. ? There is nothing in the language of the 
 act which imports that parishes were in this respect, then 
 immediately to adopt that mode of maintenance for their 
 poor, from which they should not afterwards be at liberty 
 to depart. No decided case has excluded this provision 
 from receiving a prospective construction. The words 
 “ have not ” were of themselves sufficient to cover any 
 then actually existing case, in which parishes did not 
 reap the benefit of the stat. 43 Eliz. The word “ can¬ 
 not” though in its strictest grammatical sense it applies 
 properly to present time, yet familiar instances occur in 
 which the word is used prospectively ; and as the varying 
 circumstances of parishes may make the provisions of 
 the statute of Car. II. as necessary in respect to future 
 cases, as those which existed at the time of passing the 
 act, we think sound construction requires that it should 
 be deemed applicable to both descriptions of cases. The 
 language of Lord Kenyon in Rex v. Leigh, 3 Term Rep. 
 746., which goes furthest on this head, is rather applied 
 to the expedient exercise of the discretion of the court, 
 than to its legal power in this particular. Speaking of 
 the time of passing the statute of Car. II. he says, “ if 
 “ the parish were properly divided at that time, nothing 
 66 which has happened since will induce us to make 
 “ any innovation.” And Buller, Justice, in the same 
 case, considers the discretion of the court in assisting 
 parishes to act under the one statute or the other, as fit 
 to be governed by considerations of convenience and 
 policy, and not as concluded or bound down by the 
 actually existing practice at or immediately after the 
 
 passing 
 
Subdivision of Parishes , how resisted. 
 
 passing of the statute of Car. II. (i) According to the 
 construction of the statute now adopted by us, the word 
 cannot must be read as may not; and the words “ shall, 
 66 after the passing of this act, be maintained,” &c. must 
 be understood, not merely as imperative in respect to the 
 then existing cases, but as applicable to other parishes 
 also, which in future might be similarly circumstanced, 
 and as ceasing to be imperative when any parish might 
 reap the benefit of the stat. 43 Eliz. Considering it 
 therefore as a question open for our discretion, whether 
 we will grant mandamus for the purpose of introducing a 
 different mode of managing the maintenance of the poor 
 than that which obtained in this parish, without all ques¬ 
 tion for the last thirty-two years, and probably even at 
 and after the time of passing the statute of Car. II.: we 
 cannot, in this case, discover any such preponderating 
 reasons of convenience 'or policy as should induce us in 
 the exercise of a sound discretion so to interfere: and 
 in the absence of such reasons, we think that the rule 
 nisi , which has been obtained in this case, should be dis¬ 
 charged. (2) 
 
 But where two townships of a parish had maintained 
 their poor separately under an agreement ever since 
 13 & 14 Car. II. c. 12., the court of K. B. were of 
 opinion that their having so long conformed to the 
 agreement was strong evidence that the parish could 
 not receive the benefit of 43 Eliz., although the case 
 found that the entire parish had received it; and main¬ 
 tained its poor jointly previous to 13 & 14 Car. II.; for 
 so did every parish in a qualified sense, but it? might be a 
 benefit attended with such inconvenience as to make the 
 statute of Car. II. necessary. And when the sessions had 
 quashed a rate made upon one of the-townships in con¬ 
 tradiction to this agreement, by rating non resident occu¬ 
 piers for real property situated, there, the court con- 
 
 (1) Ante 27, 28. (2),Rex .v. Palmer, 8 East, 4 1 6. 
 
 vol. 1. d firmed 
 
Of the Local Divisions J'or which Overseers appointed, 
 
 firmed the order, observing that if the parties wished to 
 have their opinion whether the parish could reap the 
 benefit of 43 Eliz. c. 2., the proper proceeding would be 
 by an application for a mandamus. (1) 
 
 of the 
 
 When a parish has been subdivided, the separate divi¬ 
 sions are to be considered with respect to the poor laws 
 as separate parishes. (2) 
 
 (1) Rex ^.Inhabitants of Foreign of 
 Walsall. Maule andSelw. MSS. 
 
 The sessions upon appeal against a 
 rate quashed it, subject to the court’s 
 opinion on the following case. The 
 parish of Walsall consists of two dis¬ 
 tricts, one called the township of the 
 borough of Walsall, aud the other 
 the township of the Foreign of Wal¬ 
 sall. The appellant, when the rate 
 was made, was a resident inhabitant 
 of the borough, and occupied the 
 close in question in the Foreign, and 
 was rated to the relief of the poor of 
 the borough for that close, with the 
 house he occupied in the borough. 
 Prior to and down to the statute of 
 the 13th & 14th of Charles 2 . c. 12., 
 the parish of Walsall received the be¬ 
 nefit of the statute of the 43d Eliz. 
 c. 2., and the poor of the borough and 
 Foreign were maintained by rates made 
 for the parish at large by the church¬ 
 wardens and overseers appointed for 
 the parish. On the passing of the 
 statute of the 13 & 14 Charles 2. 
 c. 12.■> some of the inhabitants of the 
 parish proposed that the borough and 
 Foreign should separate in the main¬ 
 tenance of their poor, and that sepa¬ 
 rate overseers for the borough and for 
 the Foreign should be appointed; this 
 . proposal was acceded to by the rest 
 of the parish, upon condition that the 
 ratable property of the parish, whtther 
 situate in the borough or the Foreign, 
 should be rated to the relief of the 
 
 poor of the district in which the occu¬ 
 piers resided: viz. If a resident inhabi¬ 
 tant of the borough occupied rateable 
 property situate iu the Foreign, such 
 inhabitant should be rated for it to the 
 relief of the poor of the borough by the 
 overseers of the borough, and not to 
 the relief of the poor of the Foreign; 
 and if a resident inhabitant of the Fo¬ 
 reign occupied rateable property si¬ 
 tuate in the borough, such inhabitant 
 should be rated for that property to 
 the relief of the poor of the Foreign, 
 by the overseers of the Foreign, ancl 
 not to the poor of the borough. An 
 agreement to this effect was made by 
 the inhabitants of the parish, and in 
 pursuance and in faith of it, separate 
 overseers for the borough and for the 
 Foreign were appointed, and have con¬ 
 tinued to be appointed down to the 
 present time, and the poor of the two 
 townships have been accordingly sepa¬ 
 rately maintained, each in their own 
 township, and have been removed by 
 orders of removal from one to the 
 other. This agreement has been con¬ 
 stantly and uniformly acted upon from 
 the first separation of the borough and 
 Foreign in the maintenance of their 
 poor, down to the making of the rate 
 appealed against. 
 
 Order confirmed. 
 
 (2) Rex v. Kirkby Stephen, Burr. 
 S. C. 664. 
 
 Where 
 
Appointment , how enforced . 
 
 Where overseers are appointed improperly, either for 
 an extra-parochial place not being a vill; or for a vill con¬ 
 stituting part of a parish, when it should be for the whole; 
 or when there is one appointment for the entire parish, 
 instead of several for the component townships; such 
 persons as are aggrieved may discuss the validity of the 
 order in several ways. 
 
 Those who wish to annul it, may bring the point 
 directly forward* • , 
 
 i. By Appeal to the quarter sessions, for the justices 
 in sessions have an appellant (i), but no original juris¬ 
 diction in appointing overseers (2). If the magistrates 
 entertain any doubts upon the legality of an appoint¬ 
 ment, they should state the facts in a case, and make 
 their order subject to the opinion of the superior court 
 thereupon. But if the doubt be whether the place for 
 which the appointment is made, be a vill or township , 
 it seems expedient that the sessions should not adjudge 
 it to be a vill even by reputation. For the court have in 
 some cases held themselves concluded by that finding, 
 and refused to exercise any judgment whether the sessions 
 had rightly deduced the fact, from the circumstances set 
 forth in the case (3). Indeed it seems to have been the 
 opinion of the judges in a recent determination, that the 
 justices ought in all cases to find as a fact whether a parish 
 can have the benefit of the statute, and a case sent up by 
 the justices for the opinion of the sessions was remitted 
 back to be restated on that account. (4) 
 
 (1) Rex v. Morris, 4 Term Rep. 
 55 °. 
 
 (2) Peart v. Westgarth, 3 Burr. 
 
 1610. 1 Bott, 37. PI. 59. Chilmer- 
 
 ton & Flagg, 2 Sess. Cas. 260. Fol. 7. 
 
 (3) Rex v. Eyeferd, when the cases 
 bad remitted to know whether the 
 place was a vill by reputation. C$ld. 
 542. Rex v. Ronton Abbey, 2 Term 
 Rep. 202. 
 
 (4) Ilex v. Watson, 7 Bast, 2x4. 
 
 Yet qua?re, whether it would have 
 been remitted, if the sessions had stated 
 such facts as might have enabled the 
 court to see whether the parish could 
 or could net have the benefit of 
 43 Eliz ? See Rex v. Justices of 
 Peterborough, ante, Peart <y. West- 
 garth, ante, 33. Rex v. Sir W. Hor¬ 
 ton, ante, 17. Hex v. Leigh, ante, 
 26. And see pest. vol. li. Chap. 37. 
 s. 3. 
 
 2d. 
 
 D 2 t 
 
 35 
 
 Remedies 
 for not, or 
 for impro¬ 
 pel ly ap¬ 
 pointing 
 overseers 
 under 13 & 
 l4C;:r. 2. 
 ci 2. 
 
 I. Appeal, 
 against the 
 appoint¬ 
 ment. 
 
3 6 
 
 2 . Removal 
 by certio¬ 
 rari . 
 
 3. Manda¬ 
 mus. 
 
 Of the Local Divisions for which Overseers appointed. 
 
 2d. By removing the order of appointment into the 
 court of king’s bench by writ of certiorari; when the 
 court will quash it not only for such defects as appear on 
 the face of the order (1), but upon a sufficient statement 
 of facts disclosed by affidavit. (2) 
 
 But the court will not quash such an order after the 
 year for which it was made has expired. (3) 
 
 3d. By motion for a writ of mandamus , to be directed 
 to two neighbouring justices, commanding them to appoint 
 overseers for a district different from that for which the 
 existing appointment is made, viz. for a township within 
 the parish, where overseers are appointed for the entire 
 parish (4), or the reverse, where the appointment is re¬ 
 versed. For wherever justices refuse to appoint overseers 
 for a place which ought to have them, the proper remedy 
 is by mandamus commanding them to do so, and if the 
 case fall within the 13 & 14 Car. II. a mandamus is a 
 writ of right, and the court must grant it. (5) 
 
 This motion should be founded on affidavit making 
 out a proper case to call for such an extraordinary in¬ 
 terposition by the court, and must state an application to 
 the justices to whom the writ is to be directed, and a re¬ 
 fusal by them to make the order; for it is not to be pre- 
 
 (1) “ Quashing an appointment 
 “ where the fault does not appear 
 u on the face of it, is ex dehito jus- 
 “ titia. But where the fault does 
 <c appear on the face of the appoint- 
 “ ment, then the party has another 
 “ remedy by action, and quashing is 
 “ not ex debit0 jusiitia Per. Cur. 
 Rex v. Butler, i Bott, 13. PI. 31. 
 
 (2) Rex v. Great Marlow, 2 East, 
 244. and the cases there cited, post. 
 5 °* 
 
 (3) Rex v. Butler, 1 Black. Rep. 
 639. 1 Bott, 1. PI. 3. 31. S. C. 
 
 (4) Rex v. Justices of Middlesex, 
 1 Bott, 34. PI 56. Rex v. Sir Watts 
 liorton, i Term Rep. 374. Per 
 Lord Mamsfield, C. J. Rex v. Beed 
 ing, Cald. 92. But this proceeding don’t 
 apply to impioper appointments for ex¬ 
 tra-parochial places. 
 
 £5) Per Curiam, supra , note (4), 
 and see Rex v. Foreign of Walsall, 
 ante, 34. 
 
 sumed 
 
I 
 
 Appointment , how enforced. 37 
 
 1' 
 
 sumed that compulsory means are necessary to oblige 
 magistrates to do their duty. 
 
 f , - V 
 
 The court in granting or refusing this rule on the 
 merits, must determine whether one appointment should 
 be made for the entire parish, or whether there should 
 be distinct overseers for the several vills which are com¬ 
 prehended within it. And where the material facts are 
 sufficiently manifest from the affidavits, they will at once 
 pronounce their judgment on the rule(i); but if there 
 is any doubt or contradiction respecting them, the court 
 will, by consent of parties, direct the question to be tried 
 in a feigned issue. (2) 
 
 When the mandamus is ordered to go, it must be served 
 on the magistrates to whom it is directed, and they may 
 either return that they have appointed overseers as they 
 were commanded, or else set forth those facts upon which 
 they submit to the court that they cannot lawfully obey 
 the writ. If they adopt the latter method, and state in 
 their return a sufficient ground of defence for non¬ 
 obedience, the court interferes no farther, however false 
 that return may be. Yet if it be untrue, 'the party ag¬ 
 grieved is not without remedy; He may have an action 
 for a false return against those who made it, in which the 
 truth or falsehood of wliat is alleged, will be controverted 
 before a jury, and if found to be false by their verdict, he 
 shall recover damages equivalent to the injury sustained, 
 and shall have a peremptory mandamus to the defendants 
 to do their duty. (3) 
 
 j / 
 
 4th. Those who wish to enforce the appointment, may 4 - Indict- 
 
 men:. 
 
 do so; 
 
 (i) Rex v. Palmer, ante, 33.(1). Hooper v. Carr, 7 Term Rep. 
 
 (a) Peart v. Westgarih, ut supra. 270. 
 
 Rex v. Juftices of Gloucefter, cited (3) 3 Black. Com. in. 
 
 d 3 By 
 
I 
 
 Of the Local Divisions for which Overseers appointed . 
 
 By preferring an indictment against the party who is ap¬ 
 pointed and refuses to take the office upon him (i). When 
 this indictment is tried, if any difficulty should arise in 
 
 point of law, the jury will under the judge’s direction 
 find a special case or verdict, for the opinion of the supe¬ 
 rior court (2) ; or if the defendant is found guilty by the 
 judge’s direction, the law permits that the propriety of 
 liis opinion should be discussed before the court in a mo¬ 
 tion for a new trial, upon the facts which appear from the 
 judge’s report of the evidence. (3) 
 
 ■ 1 . 1 
 
 It may be brought collaterally into question. 
 
 5. Appeal 
 against a re¬ 
 moval. 
 
 
 5th. By an appeal against an order of removal; for 
 the district that removes a pauper must take care 
 that the place to which it sends him maintains its 
 own poor (4), and that a settlement is to be gained 
 there. (5) 
 
 6. Against 6th. By appeal against the poor’s rate. For it is a good 
 the rate. ground of appeal, that .the poor’s rate is made for part of 
 the parish, when it should have been made for the 
 whole (6); or e converso for the whole, when it should 
 only include a township (7); and the objection is equally 
 fatal, that it is made for an extra-parochial place for 
 which none ought to be made. 
 
 (1) Rex v. Jones, 1 Const. .337. ' 
 PI.'408. Rex v. Pauly, Ib.339. PI.411. 
 Rex v. Binder, 4Term Rep. 778. 
 
 (2) Peart-y.Westgarth, 3 Burr.1610. 
 
 (3) Rex .Warner, 8 'Perm. Rep. 
 375. They may first remove the 
 order into K.B., and have it confirm¬ 
 ed. Post. 
 
 (4) Dolting v. Stokelane, Fort. 219. 
 
 • * • . 
 
 2 
 
 (5) Rex v. Denham, Burr. S. C. 35. 
 Rex <v. Tamworth, Cald. 28. 1 Bott, 
 40. PI. 61. 
 
 (6) Rex v. Watson, 7 East, 214. 
 
 (7) Rexi/.Leigh, 3 Term Rep.746. 
 Rex v . Newell, 4 'Perm Rep. 266. 
 But see the opinion of Lord Mans¬ 
 field, Ch. J. Rex v. Beeding, C«ld. 
 93. 
 
 V 
 
 7th. 
 
39 
 
 Appointment , how enforced. 
 
 7th. By action of trespass (1) or replevin (2), where 7 - Action, 
 the rate is attempted to be enforced by distress; for the 
 rate being made for an improper district, is altogether 
 void, and consequently the distress is illegal, being taken 
 without due authority. 
 
 (1) Hilton *y Paxvle, Cro. Car. 92. 338. a H. Black. 267. Tracy v. 
 
 (2) Rudd v. Fofter, 4 Mod. 157. Talbot, Salk. 532. Lane v. Cobham, 
 
 Loid Bute v. Grindall,'! Term Rep. 7 Ea.ft, 1. 
 
 • t ' 
 
 ' \ , • 
 
 i 
 
 
 \ 
 
 J 
 
 * ' 
 
 - •• v 
 
 I) 4 
 
Overseers. 
 
 Church¬ 
 wardens, 
 how elected. 
 
 JBy custom. 
 
 iy 
 
 ' *4 
 
 ( 4 ° ) 
 
 / J- - . * If * 
 
 * * . . ' . v f -j 1 , ' \ 
 
 CHAPTER II. PART II. 
 
 0 / appointing Overseers , and their Duties. 
 
 QVERSEERS of the poor are, 1. The church war¬ 
 dens (1): 2. Inhabitants who are specially appointed 
 to the office. (2) 
 
 ' • * 1 
 
 » K 
 
 Churchwardens should regularly be chosen annually in 
 Easter week (3); they are usually two in number, one of 
 whom, according to common right, is nominated by the 
 parson, or in his absence by his curate (4); the other is 
 elected by the parishioners. (5) 
 
 Such is the general mode of election prescribed by the 
 canons and recognized by the common law ; but it may 
 be departed from where custom has established a differ¬ 
 ent method of appointing to the office. 
 
 Thus by custom both may be chosen by the parish¬ 
 ioners without the clergyman (6), or by a select vestry (7), 
 or by the old churchwardens (8), or by the lord of the 
 
 manor. (9) 
 
 (1) By 43 Eliz. c. 2. 
 
 (2) Uiider 43 Eliz. c.2. and 13 & 14 
 Car. 2. c. 12. s. 21. See ante, 7. 
 
 (3) 89 Can. 
 
 (4.) Hubbard v. Penrice, 2 Str. 2. 
 1246. 
 
 ( 5 ) 89 Can. Hubbard v. Penrice, 
 ante (3). Stutter v. Freston, 1 Str. 52. 
 But it seems to have been Sir M. Hale’s 
 opinion, that of common right every 
 parish ought to chuse their own church¬ 
 
 wardens. Dawson •v. Fowle, Hard. 
 378. See also I.ord Holt’s opinion, 
 Rex v. Rice, I. Ld. Raym. 138. 
 
 (6) Warner’s case, 2 Cro. 532. 
 
 2 Roll. Abr. 234. Ward v. Brampston, 
 
 3 Lev. 362. 
 
 (7) Dawson n. Fowle, Hard. 378. 
 
 (8) Catten v. Barwick, 1 Str. 145. 
 
 (9) I Burn’s Eeclesiasr. Law, Tit. 
 Churchwardens,cites Godb. 153. 
 
 But 
 
Of appointing the Churchwardens. 
 
 4i 
 
 But such customs are to be construed strictly; for if 
 through disagreement of the electors, or other circum¬ 
 stances, the customary method of election cannot be fol¬ 
 lowed, the custom is thereby laid out of the case, and 
 the parish must elect according to the canon. (1) 
 
 Where the right of appointing exists in the parish- Voters equal 
 ioners, it is vested in the whole assembly, who are all up- m P ower * 
 on an equal footing, so that not only the power of election, 
 but likewise that of adjourning the meeting, resides in the 
 majority of those assembled, and neither the parson nor 
 his churchwarden possesses any right to preside in the as¬ 
 sembly, or to adjourn the poll (2); and the bishop’s court 
 cannot try the legality of the votes. (3) 
 
 * . 
 
 No person who lives out of the parish is eligible as 
 churchwarden, although he occupies lands within it (4), 
 and many residents are exempted from serving the office 
 by the common law r ; such are peers, members of parlia¬ 
 ment, and clergymen (5), attornies (6), and clerks of 
 the king’s bench (7). Others are privileged by statute, as 
 apothecaries (8), freemen of the surgeon’s corporation in 
 London (9), dissenters (10), those who prosecute a felon 
 to conviction (11), Roman Catholic ministers taking the 
 oath and conforming to the regulations specified 3 Geo. 3* 
 c. 32. Sergeants, corporals, drummers, and privates in 
 the militia from their enrolment until their discharge. (12) 
 
 Churchwardens must be sworn into the office before Sworn in. 
 they can take its duties upon them. The archdeacon is 
 
 (i) Catten -j. Banvick, ante (7). 
 (2.) Staughton v. Reynolds, 2.Str. 
 1045. Fort. 168. Cas. Temp.Hardw. 
 S. C. 
 
 (3) Per Ld. Mansfield, C. J. and 
 Wilraot, Rex v. Harris, 3 Burr, 
 1422. 
 
 ( 4 ) Gibs. 2 IJ. 
 t S ) Ibid. 
 
 (6) Wilson’s case, 2 Roll. Abr. tit. 
 Privilege—272, Barber’s Case, Ibid. 
 
 (7) Stampe’s Case,2 Roll. Rep. 368. 
 Palm. 392. S. C. 
 
 (8) 6 C. 3. c. 4. 
 
 (9) 18 G. 2. c. 15. 
 
 (ro) 1 W. & M. c. 18. 
 
 (11) 10 & 11 W. c .25, See post 43. 
 
 (12) 26 G. 3. c. 107. s. 130. 
 
 to 
 
42 
 
 Of appointing Overseer*. 
 
 to administer the oath, and his function is altogether mi¬ 
 nisterial, so that whatever reasons there may be to doubt 
 of the party’s qualification for the office (i), or the va¬ 
 lidity of his election, he cannot inquire into these matters, 
 nor refuse to swear him in on these accounts (2). By 
 the canon 1 Jac. 89., churchwardens shall continue in 
 office but one year, except chosen again in like manner^). 
 But this refers only to the period at which others should 
 be appointed in their stead, for when once sworn in they 
 continue in office until those who are chosen to succeed 
 them, are in the same manner sworn in. (4) 
 
 Mandamus 
 to compel 
 election. 
 
 If those persons who ought to chuse churchwardens 
 neglect to do so at the proper season, they may be com¬ 
 pelled to it by a writ of mandamus issuing from the court 
 of king’s bench (5); and if the archdeacon should refuse 
 to swear those who are chosen, that court will grant the 
 writ to oblige him to administer the oath. (6) 
 
 t ' 
 
 Cveneers, The appointment of overseers for parishes (7) or town- 
 appoinred in ships (8), is to be made in counties by two or more jus- 
 
 P-f es and tices of the peace. 
 
 in places In towns and places corporate and cities, it is to be 
 carponne. execu p ec { by the mayors, bailiffs and other head officers, 
 being justice or justices of peace, and no other justices of 
 peace -to enter or meddle there (9). But it cannot be 
 made by the head officer alone if there are other corpo¬ 
 rate justices, the signature of two magistrates being ne¬ 
 cessary in that case, as well as in counties. The statute 
 only means to give justices, in corporations, and head of- 
 
 (1) Rex. v. Rice, x Ld. Ravin. (5) Stutters. Freston, 1 Str. 52. 
 
 138. 1 Salk. 166. (6) Rex v. Dr. Harris, 3 Burr. 
 
 (2) Rex v. Simpson, 1 Str. 6x0. 1420. 1 Burn’s E#cles. Law, Tit. 
 
 P.cx. v. White, 2 Ld. Raym. 1326. Churchwardens. 1 Com. Dig. Tit. 
 See the distinction taken by Lord Holt, Mandamus (A). 
 
 Rex. v. Twitty, 2 Salk. 433. Also (7) 43 Eliz. c. 2. s. 1. 
 
 Fitzg. 195. ^ (8) 13 Si 14 C. 2. c. 12. s.2i. 
 
 (3) 3 Com. Dig. Eglise, (F I.) (9) 43 Eliz. c. 2. S. 8. 
 
 x (4) 188 Can. 1 Burn’s Ecclesiast. 
 
 claw, Tit. Churchwardens. 
 
 ficors 
 
When to he appointed. 
 
 43 
 
 fleers where there are no justices, the same power as 
 justices in counties; in sessions (where there are justices) 
 as weli as out of it. (i) 
 
 But an alderman of London has power given him ex- In London, 
 pressly by the statute, of doing and executing in every 
 respect so much as is appointed and allowed to be done 
 
 by one or two justices of a county. (2) 
 
 ... . * 
 
 When a parish extends into more counties than one, In parishes 
 or part lies within the limits of any city, town, or place ^ more 
 corporate, the justices of the county and head officers of counties 
 the city shall, within their several limits, wards, and juris¬ 
 dictions, execute the ordinances respecting overseers ; 
 but the churchwardens or overseers, or the most part of 
 them of the said parishes, shall, without dividing them¬ 
 selves, execute their office in all places within the said 
 parish. (3) 
 
 * \ 
 
 This appointment is to be made yearly, in Easter week, when to he 
 or within one month after Easter (4); and if neglected, a PP oimed> 
 the justices dwelling within the division, and every mayor, 
 alderman and head officer, of city, town, or place cor¬ 
 porate, where the default shall happen, is to forfeit d. d- penalty 
 r , , p 1 . i v j- / t , for default. 
 
 tor every such detauit, to the reliel or tire poor, to be 
 levied by the parish officers by distress, under a warrant 
 from the quarter sessions. (5) • 
 
 justices to appoint within the month, and imposing the quem a P~ 
 
 But the statute is only directory, in commanding the But subse- 
 
 bench will not quash an appointment because subsequently 
 
 power to a month after Easter, and should be construed 
 
 so as to. destroy the mischief and advance the remedy 
 
 (1) Rex v. Butler, i Black. 649. 
 1 Bott, 13. PI. 31. 
 
 . (2) 43 FJiz. c. 2. s. 8. 
 
 (3) ' Ibid. s.9. Ante, p. 8. 
 
 (4) 43 Eliz. c. 2. s. i. 
 
 (.£) Ibid. s. io. 
 
 which 
 
44 
 
 Of appointing Overseers . 
 
 which was to have proper officers set over the poor. 
 But if a subsequent appointment was to be void, it would 
 subject the parish to the inconvenience of wanting over¬ 
 seers, by a default of the justices, which it was not in its 
 power to prevent. (i) 
 
 Mandamus 
 to compel 
 an appoint¬ 
 ment after 
 tile month. 
 
 After the month is expired, and no officer appointed, 
 the court upon application will grant a mandamus to com¬ 
 pel the magistrates to make one. 
 
 Where an 
 overseer 
 dies or re¬ 
 moves, pow¬ 
 er to ap¬ 
 point 
 another. 
 
 If an overseer dies, or removes from the place for which 
 he is appointed, or becomes insolvent, two justices may, 
 on oath thereof, appoint another in his stead to continue 
 till new ones are appointed. (2) 
 
 This power 
 discretion¬ 
 ary in the 
 justices. 
 
 The appointment of lit persons for the discharge of 
 this office, is a discretionary power vested in the justices, 
 who are to select such householders as they think most 
 proper, having respect to the circumstances of the place 
 and condition of the individual (3). To enable them to 
 make a fit selection, it is usual for the existing overseers, 
 some time before the expiration of their year, to form a 
 list of a sufficient number of substantial householders 
 within the parish, proper to succeed to the office. Where 
 this is not done voluntarily, the justices generally issue a 
 precept to the high constable of the division, or constable- 
 wick, commanding him to issue his warrant to the petty 
 constables of those places in which it has been omitted, 
 requiring them to give the overseers notice, that they 
 shall forthwith deliver the same. (4) 
 
 Number of The 43 Eliz. directs that the overseers for parishes 
 
 overseers. * 
 
 “ are to be four, three, or two substantial householders. 
 
 (1) Rex v. Sparrow, 1 Bott, 21. 
 PI. 39. aStr.1123. 
 
 (2) 17 G. II. c. 38. s. 3. 
 
 (3) Rex v. Chardstock, 16 Vin. 
 Abr. 415. Rex v. Stubbs, 2 Term 
 
 Rep. 395. Rex v. Forrest, 3 Term 
 Rep. 38. 
 
 (4) See Burn’s Justice, Tit. Pvor 
 (Overseers). ^ 
 
 “ having 
 
Their Number . 
 
 44 having respect to the proportion and greatness of the 
 44 parish (r),” and 13 & 14 Car. II., that there shall be 
 44 two or more for townships or villages (2)More 
 than four (3), and less than two (4), cannot be appointed. 
 For the number descending in the act of Elizabeth, shews 
 that it was the intent of the legislature, to prevent the 
 appointment of a greater number to a burthensome 
 office, not likely to be better executed by many than by 
 few. This construction is strengthened by reference to 
 sect. 18. which empowers the justices to appoint such a 
 number of overseers for the island of Fowlness, as the 
 exigence of the place shall require (5). And no usage 
 in the parish to have a greater number, can legalize an 
 appointment of more, or control the expressions of the 
 statute. (6) 
 
 An appointment therefore of five overseers is void for- 
 the whole; for being entire and relating to all equally, 
 none of those chosen are entitled to preference, and it 
 must be good or void altogether. (7) 
 
 It has been held likewise, that the churchwarden can¬ 
 not be chosen an overseer for the same parish during 
 his continuance in office. (8) 
 
 an appointment 
 (0 43 
 
 (2) 13 & 14 C. II. c. 12. s. 21. 
 
 (3) Rex v. Harman, i Bott, 
 
 PI. 33. Rex<i>. Loxdale, I Burr. 445. 
 
 (4) Per Lord Hardwicke, C. J. 
 Rex. v. Denham, Burr. S. C. 35. 
 Per Lord Kenyon, C. J. Rex v. Morris, 
 4 Term Rep. 550. Decided Rex v. 
 Clifton, 2 East, 168. As to the 
 overseers of a township under 13 & 14 
 Car. 2. But doubted by Lord Mans¬ 
 field, Rex v. Eyford, Cald.542.' 
 
 (5) Ut in n. (2). 
 
 (6) See Rex v. Harman, I Bott, 
 16. PI. 33. Rex ^.Loxdale, lb. 18. 
 PI- 35 - ‘ 
 
 (7) Ut in n. (2). Rex v. Wymond- 
 ham, 6 Term Rep. 552. and the opi¬ 
 nion of Lawrence, J. Rex v. Clifton, 
 2 East, 175. 
 
 (8) Rex v. All Saints, Derby, 
 13 East. 143. 
 
 But though there must be more than one overseer, yet 
 of one is not bad on the face of it, or 
 
 Eliz. c. 2. s. 1. 
 
 16. 
 
 45 
 
 .1 
 
 Appoint¬ 
 ment offive. 
 
 Appoint¬ 
 ment of one 
 overseer. 
 
 unless 
 
Of appointing Overseers. 
 
 unless it appears that no other is appointed by some other 
 order (i); for there is no law which says that there shall 
 be an appointment of two or more overseers uno Jlatu> or 
 at the same time (2), much less by one and the same in¬ 
 strument. (3) 
 
 They arc to be substantial householders. But the word 
 substantial is a relative term. The appointment therefore 
 in an extraparochial place of Mrs. Stubbs, who occupied 
 the greatest part of the land there, and of one Miles, who 
 occupied a small house which he rented, with something 
 more than an acre of land, lie being poor -and a servant to 
 Mrs. Stubbs; together with one Keeling, who a la¬ 
 bourer and poor, but the house in which he lived being his 
 own property, w as held a good appointment of substantial 
 householders to serve the office, there being no other per¬ 
 sons in the tow nship. “ If there were a great many opu- 
 t£ lent farmers, the appointment of a day-labourer might 
 be improper; here there were no other persons to serve. 
 “ They are both householders, with some land annexed 
 £; to their houses, and one of them a proprietor. No 
 better persons can be had than the place affords, and 
 “ the want of them is no reason why the poor should 
 “ not be provided for.” (4) 
 
 A woman It w r as also held in the same case, that a woman w T as, 
 pomtid P not ^competent to the office by reason of her sex, and 
 that her appointment was good from necessity, wdiere there 
 was not a sufficient number of male householders to exe¬ 
 cute it. But where there are a sufficient number of men 
 
 \ 
 
 qualified to serve, they are more proper, and the justices 
 
 being vested with a discretionary power of approbation, 
 
 \ 1 
 
 \ V 
 
 (1) See Rex v. Clifton, ut supra. (3) Rex v. Morris. 4 Term Rep. 
 
 (2) Per Denison, J. Rex -v . Bcs- 550. 
 
 land. 1 Bott, 17. P). 34. (4) Rex v. Stubbs: 2 Term Rep. 
 
 395 - 
 
 46 . 
 
 Their con¬ 
 dition. Sub¬ 
 stantial 
 household¬ 
 ers. 
 
 are 
 
Who exempted* 
 
 47 
 
 are not likely to approve of a female appointment where 
 there are other proper objects, (i) 
 
 Some persons are exempted from the burthen of this 
 office by their necessary attendance on other public duties: 
 such as practising barristers (2) and attornies (3). A 
 clergyman, though he has no cure of souls (4); the high 
 'constable in a different hundred (5); ah officer of the 
 customs, though he have not his writ of privilege at the 
 time of his appointment (6); and all revenue officers, as 
 officers of the exchequer. (7) 
 
 1 1 • 
 
 It is also said that occasional residents in the parish, if 
 not absolutely ineligible, are at least improper to be 
 chosen (8). It has been made a question likewise, whether 
 un acting justice of the county who was also a lieutenant 
 of marines on half pay, is exempt. As the case is re¬ 
 ported the court gave no decided opinion on the point, 
 but seemed to consider the situation as a good ground for 
 selecting some more eligible person, and that it did not 
 amount to an exemption (9). But Lord Kenyon, in ad¬ 
 verting to the case, has observed that “ In the King v. 
 “ Gayer, it seemed to be agreed that the offices of justice 
 tc of the peace and overseer of the poor were incompati- 
 “ ble, because the accounts of the latter were subject to 
 “ the control of the former.” (10) 
 
 (1) Ibid. But see Rex v. Chard- 
 stock, 16 Vin. Abr. 415. 
 
 (2) Poordage’s case, 1 Mod. 22. 
 
 (3) Although it was a special cus¬ 
 tom that every parishioner should 
 serve the office according to the situ¬ 
 ation of his house, Rex v. Prowse, 
 Cro. Car. 389. 
 
 (4) Per 3 Just: but Holt, C. J. 
 contra, Anon. 6 Mod, 14c. 
 
 (5) Anon. 28. Car. 2. 1 Jones, 
 
 46. • 
 
 (6) Rex -y. Warner, 8 Term Rep. 
 375 - ■ 
 
 (7) Raymond v. Botolph’s, Aid- 
 gate, 2 Chan. Rep. 196. Cavvthorne 
 *y. Campbell and others, 1 Anstr. 
 205. 2x6. 
 
 (8) Rex -v. Moor. Carth. 161. 
 3 Com. Dig. Tit. Justices of the 
 peace. (B. 64.) 
 
 (9) Rex v. Gayer, 1 Burr. 245. 
 Ppst. 51.- 
 
 (10) Pvex v. Putcman, 2 Term Rep. 
 
 Some 
 
 Who are 
 exemptfrom 
 the office by 
 common 
 law. 
 
I 
 
 48 
 
 Of appointing Overseers. 
 
 By statute. Some persons are exempted by statute; such are the 
 President, Commons, and Fellows, of the College of Phy¬ 
 sicians within the city of London (1), for a physician is 
 not exempted otherwise (2). Freemen of the company 
 and corporation of Surgeons in London, who are exa¬ 
 mined and approved; while they exercise the art (3). 
 Apothecaries exercising the art within the city of Lon¬ 
 don, and seven miles thereof, if free of the apotheca¬ 
 ries’ company; and those who use and exercise it else¬ 
 where, if they have served seven years apprentice¬ 
 ship (4). Those who apprehend persons guilty of bur¬ 
 glary, or privately stealing to the value of five shillings 
 in a shop, warehouse, coach-house or stable, and prose¬ 
 cute to conviction, shall have a certificate, which shall 
 discharge them or their respective assignees from all 
 parish and ward offices in the parish where the felony is 
 committed. (5) 
 
 Serjeants, corporals, drummers, and privates, in the 
 militia, from the time of their enrolment till their regu¬ 
 lar discharge (6), are excused from serving as overseers; 
 as are dissenting ministers taking the oaths, and sub¬ 
 scribing the declaration and articles of the church of 
 England required by the toleration act (7). But other 
 dissenters who are appointed and scruple to take the 
 office upon them, have no further privilege than that of 
 serving by deputy, provided the said deputy is allowed 
 and approved of by such person and persons, in such 
 manner as the principal should by law have been allowed 
 or appointed. (8) 
 
 (1) 32 H. VIII. c. 40. 
 
 (2) Doctor Poordage’s case, 
 1 Mod. 22. 
 
 (3) j8 G.II. c.15. s.io. 
 
 (4) 6 & 7 W. III. c. 4. 
 
 (5) io & 11 W.III. c. 4. 
 
 (6) 26 G. 2. c. 107. s. 130. 
 
 (7) 1 W. & M. c.18. s. n. although 
 such minister is also engaged in trade. 
 Kenward v. Knowles, Willes Rep. 
 I Const. 14. PI. 27. 
 
 (8) 2 W. & M. C. 18. s. 7. 
 
 As 
 
Form and Time of Appointment. 
 
 As to the form of the order of appointment, it must Form of the 
 
 be under hand and seal, and therefore in writing (i). ment^ 
 
 It should pursue the words of the act, and appoint the should , 
 
 1 „ . A f . name them 
 
 persons named “ overseers eo nomine . An order, setting «* Over- 
 fortli that such persons by name “ were appointed to set ** secrs * 
 
 <6 the poor to work, &c.” mentioning the several duties 
 imposed by the act, but not appointing them overseers in 
 express terms, was quashed for this defect (2). It must « Substan. 
 also state them in the body of the order (3) to be “ sub- ^ a | d houS n" 
 stantial householders;” and no other description seems 
 equivalent; for where an order described them as “ prin¬ 
 cipal inhabitants ,” it was held bad (4). It must further 
 express, that they are “ substantial householders there, 
 
 “ or in the parish (5); and that the appointment is for a « in the 
 “ parish (6) or township, or what is synonymous, an 
 u hamlet (7), as the case may be.” The order must 
 likewise set forth, that the district for which it is made 
 is within the county or corporate place over which the 
 magistrates who make it possess jurisdiction. (8) 
 
 But it is not necessary that it should mention the jus¬ 
 tices to be for the division, for the words of the statute - 
 are only directory (9); nor that the persons named are 
 
 / ^ v j- * 
 
 (1) Rex v. Arnold, 1 Str. 101. (9) Rex v. Sparrow. 2 Sess. Cas. 
 
 (2) Rex v. St. George, Fort, 320. 140. Rex v. Loxsdale, 1 Burr. 447. 
 
 (3) Case of overseers of Weobly, This is so in all cases where the statute 
 
 ’nfra. directs any thing to be done by justices 
 
 (4) Rex Sherringbrooke, 2 Ld. of a division. Per Holt, C. J. Anon* 
 
 Raym. 1394. Case of the overseers of 12 Mod. 546. 2 Salk. 473. Eliz. 
 
 Weobly, 2 Str. 1261. Ashley’s case, ib. 480. Rex v. Sir 
 
 (5) Case of the overseers of Weobly, John Price, Cald. 305. where it is 
 
 ut supra, (4). observed by Aston, J., that “ any 
 
 (6) Rex v. Severn and Arnold, justice in the county going to the 
 
 Say. 278. meeting in the division is for this pur- 
 
 (7) Rex v. Morris, 4 Term Rep. pese,” [of granting a beer licence] a 
 
 55 °* justice of the division. 
 
 (8) Rex v Houlditch, 1 Bott, 4. 
 
 PI. 11. 
 
 VOL. I. 
 
 E 
 
 appointed 
 
5© • Of appointing Overseers. 
 
 appointed overseers of the parish 44 together with the 
 churchwardens thereof,” for where overseers are legally 
 appointed, they are by operation of law joined with the 
 churchwardens. (i) 
 
 The order must express the time for which these offi¬ 
 cers are appointed. But though they can only continue 
 in office until the Easter ensuing their appointment, and 
 must not be appointed for a longer period; yet if the or¬ 
 der appoint them “for the present year,” (2) or 44 for 
 “ this present year 1766,” (3) or 44 for a whole year,” (4) 
 or 44 for one year then next ensuing,” (5) or 44 then 
 44 next ensuing the date thereof,”(6) it is sufficient; for 
 where the expression admits of a two-fold construction, 
 that shall be given to it by which the order may be sup¬ 
 ported, and therefore the year in these orders was under¬ 
 stood to mean the overseers' year. 
 
 , The appointment is not only to be under the hand and 
 
 stated. L x ^ 
 
 seal of two justices, but they must sign and seal in the 
 presence of each other, or it will not be good (7). Though 
 
 executed 
 
 The time 
 for which 
 made. 
 
 (s) R.egina v. Searle, 1 Bott, 3. PI. 8. 
 
 (2) Rex v. Sparrow, 1 Bott, 21. 
 PI. 39. 
 
 (3) Rex v. Helling, 3 Burr. 1904. 
 
 (4) Rex v. Jones, 
 
 (5) Rex -y. Burder, 4 Term Rep. 
 7 / 8 . 
 
 (6) Rex v. Stubbs, when the ap¬ 
 pointment was dated 6th October, 
 a Term Rep. 395. 
 
 (7 ) Rex v. Forrest, 3TermRep.38. 
 Rex-y. Great Marlow, a East,244. Yet 
 perhaps if the magistrates had actually 
 conferred upon the appointment and 
 concurred therein,It would be good al¬ 
 though they signed and sealed sepa¬ 
 
 rately. A warrant granted by com¬ 
 missioners of bankrupt to bring a wit¬ 
 ness before them who had disobeyed 
 their summons, was adjudged to be 
 good although it was signed by them 
 when at separate places, and not at any 
 meeting held by them as commissioners. 
 For per Lord Ellenborough, C. J. We 
 must consider, that in directing the 
 warrant to be made out, they gave their 
 officer every direction for that purpose, 
 including the persons’ names to whom 
 the warrant was to be directed ; so that 
 when it came before them for th ir 
 signatures, nothing else should remain 
 to be done, except the mere act of 
 
 signing; 
 
 t 
 
Form and Time of Appointment, 
 
 executed on Sunday, yet if done bona fde it is sufficient, 
 as being a work of charity (i). But it is said in a subse¬ 
 quent case, that the impropriety of the day renders it 
 prima facie clandestine and bad (2). Thus where two 
 adverse sets of borough justices met before midnight of 
 Easter eve, and began making appointments of overseers 
 the instant the clock had struck twelve, and kept on re¬ 
 newing the same appointments for an hour or two; and 
 one set made a fresh appointment on Sunday morning, 
 supposing that there would be a contest concerning the 
 validity of the appointment made soon after midnight, 
 and perhaps all of them bad. The appointments being 
 removed into the king’s bench by cei'ti'orari , and these 
 facts disclosed by affidavit, Lord Mansfield delivered it 
 as his opinion, in which the other judges concurred, ( 
 46 I don’t know that there is any authority which says 
 44 that an appointment made on Sundays is good: it cer- 
 44 tainly is not a day for such purposes as these, and I 
 44 will not give my sanction to any of the appointments. 
 44 Let them be set aside, and a mandamus directed to 
 44 the justices to make a new appointment, and let the 
 44 mayor give two days notice of the time and place of 
 44 meeting for it.” (3) - - _ 
 
 signing; and that need not be done 
 together. Suppose each, immediately 
 after writing his name, had left the 
 room where they were assembled in 
 the first instance, would that have 
 avoided the warrant ? Then why not 
 sign it alone in any other place ?” 
 J 3 attye v. Gresley and others, 8 Ijjast, 
 319* But see post. 
 
 (1) Rex v. Clerkenwell, Fol. 4. 
 I Bott, 21. PI. 38. Rex v. Mer¬ 
 chant and Allen, 1 Bott, 25. PI. 43. 
 “ there is a distinction between mi¬ 
 nisterial and judicial acts, for the first 
 may be done on a sabbath dav, but 
 judicial acts may not.” Per Monta¬ 
 
 gue, C. J. Waite v. inhabitants of 
 Stokes, Godb. 280. It is clear that 
 judicial acts done on Sunday are void. 
 Swan v. Broome, 3 Bur. 1595. af¬ 
 firmed in Dom. Proc. 
 
 I 
 
 (2) Rex v. Butler, 1 Black. Rep. 
 649. 1 Bott, 25. PI. 42. where Lord 
 Mansfield doubts of the case of Rex •v. 
 Clerkenwell. But the 43 Eliz. c. 2. 
 requires, that the churchwardens lhall 
 meet once a month on Sunday after 
 service, to confer respecting the objects 
 of the act. 
 
 (3) Rex *y. Overseers of Bridge- 
 water, Cowp. 139. 
 
 5 
 
 1: 2 
 
 When 
 

 5 * 
 
 Of appointing Ovej'seers. 
 
 when the When an appointment is once legally made, the mac- 
 fs P made? ent gyrates are fundi officio. If two appointments, there- 
 other jus- fore, each being of a sufficient number of overseers, are 
 alter it. made on the same day, that which is prior m time is 
 good (i), and the second void. And other magistrates 
 are not only disabled from making a new appointment (2), 
 but if a person who has been appointed applies to them 
 to be exempted, upon sufficient cause, they cannot re¬ 
 move him and substitute another in his place, but he 
 
 must appeal to the sessions for his discharge. (3) 
 
 _ • 
 
 • • r- • 
 
 Appeal If a ny « person or persons are aggrieved” by the ap¬ 
 
 pointments. pointment, they may appeal to the next quarter sessions, 
 whose jurisdiction extends over the place for which they 
 are appointed. (4) 
 
 Given to the 
 parishioners. 
 
 
 Power of 
 Sessions. 
 
 This right is not only given to those who are appointed, 
 but also to the parishioners, for they may be persons 
 “ aggrieved” by the choice of an improper person, as if 
 he be insolvent (5). In this appeal, the parties may go 
 into evidence of whatever can shew a want of jurisdiction 
 in the magistrates making the order (6), or point out the 
 impropriety of their choice. 
 
 The sessions, on appeal, have a right to exercise the 
 same latitude of discretion in judging who are fit to be 
 nominated as overseers, as the two justices had when 
 making the original order. “ They are not obliged to 
 <e give any reason for their opinion, because the legisla- 
 
 » ' u 
 
 (1) Reg. v. Searle, I Bott, 21. post, vol.11. chap. 35. sect. 7. and 
 PI. 37. Rex. v. Merchant and Allen, other proper heads. 
 
 Ib. 25. PI. 43. ( 5 ) v. Forrest, 3 Term Rep. 
 
 (2) Ut in ». 1. 3 ^* 
 
 (3) Rex v. Great Marlow, 2 East. (6) Alhrighton v. Skipton, 1 Stra. 
 
 244. 301, Rex v. Stotfold, 4 Term Rep. 
 
 (4) 43 Eliz. e. 2. s.6. 17 Geo. 2. 601. Rex. is Flbher, 1 Bott, 67. 
 
 e. 38. As to the time of appeal, see PI. 76. 
 
 a ture 
 
 > 
 

 Method of quashmg , fyc. 
 
 4 
 
 “ ture has invested them, on appeal, with the power and 
 u authority of appointing overseers.” 
 
 The order which they make may be removed by cer¬ 
 tiorari into the court of king’s bench; and though the 
 justices are not bound to state their reasons for making 
 it, yet they may, if they think proper, either give them 
 as rationes decidendi in'the body of the order, or separately 
 in the shape of a case. If they appear in the body of 
 the order, and are wrong, the court will quash what is 
 manifestly made by mistake: but the bad reason ought 
 to appear to have been their only inducement for making 
 it; for the execution of a discretionary power should be 
 supported, unless the whole reason is set forth, and is 
 manifestly wrong. If there may have been other 
 grounds, they shall be presumed to be sufficient.—Thus, 
 where, on an appeal against an appointment of a Mr. G. 
 the sessions stated in their order, <c that G. was and is 
 “ an acting justice of the peace for the county, and also 
 " a lieutenant of marines on half pay, and that there 
 <£ are other sufficient and substantial householders 
 n within the parish, and therefore vacate the warrant 
 u of appointmentthe court of king’s bench confirmed 
 their order, on the foregoing principles:—“ For the 
 “ whole reason is not given; they say there were other 
 w persons qualified, and supposing Mr. G. liable to serve 
 “ the office, they might think him not so proper as many 
 “ others, (i) 
 
 I , 
 
 There is also a power of removing by certiorari into 
 the king’s bench the original appointment, without ap¬ 
 pealing to the sessions; and when removed, the court 
 will quash it, not only for defects appearing in the order 
 itself, but upon facts stated by affidavit where they shew 
 
 (i) Rex v, Gayer, i Burr.345. 1 Bott, 9 . Pi. 30. 
 
 * 3 
 
 ( 
 
 5S 
 
 Removal of 
 order from 
 Sessions by 
 certiorari. 
 
 When the 
 Court will 
 quash. 
 
 Oi iginal re¬ 
 moval into 
 B.R. 
 
 / . 
 
 a want 
 
54 
 
 When to 
 be removed. 
 
 Punishment 
 of those not 
 performing 
 their duty. 
 
 • . 
 
 Their du¬ 
 ties. 
 
 Of appointing Overseers , 
 
 a want of jurisdiction or any illegal conduct in the jus¬ 
 tices by whom it is made. (i) 
 
 * ’• • *. ■ i 
 
 • • 
 
 The party aggrieved by the order, who moves to 
 quash ifc, may remove it previous to the next sessions after 
 it is made (2), unless an appeal is actually lodged, in 
 which case it cannot be done until the sessions have made 
 
 » ** J i 
 
 a determination upon the appeal. If a certiorari should 
 be granted for the purpose*by mis-apprehension pending 
 the appeal, the court will quash it on motion, quia erro - 
 nice emandvit (3). But as this appointment may be re¬ 
 moved likewise by those who wish to have it confirmed .,. 
 they cannot bring it up in order to move for its confir¬ 
 mation, until the next sessions has been held, to which 
 the appeal must be made. At least the court will not 
 allow it to be done, when attempted for the purpose of 
 taking away the benefit of appeal from those who are 
 entitled thereto. (4) 
 
 If those w r ho are appointed do not take one of these 
 steps to get freed from the office; or if doing so, the ori¬ 
 ginal order is confirmed, they are liable to an indictment 
 where they refuse to undertake or execute the duty (5). 
 But they must have notice of their appointment. (6) 
 
 The care of the poor is intrusted to them in conjunc¬ 
 tion with the churchwardens, where there are any. They 
 are required to meet at least once a month in the church 
 on Sunday after divine service in the afternoon, under 
 
 (1) Ante, 34., and per Lawrence, J. 
 Rex v. Great Marlow, 2 Eaft, 247. 
 Rex v. Overseers of Bridgewater, 
 Covvp. 139. 
 
 (a) Rex v. Harman, And. 343. 
 
 (3) Case of the borough of War¬ 
 wick, 2 Stra. 991. 
 
 (4) Rex •:■. Houlditch, PI. 75. 
 Hex v■ Jones, 2 Stra. 1146, 
 
 2 
 
 (5) See the cases cited, ante 36., and 
 per Lawrence, J . Rex v. Great Mar¬ 
 low, 2 East, 249. 
 
 (6) Rex -v. Harpur, 5 Mod. 96. 
 Fletcher v. Ingram, Ih. 127. cases of 
 the election of a constable, & ilex v. 
 Harm an, ante (2}. 
 
 tho 
 
 - 
 
and their Duties . 
 
 i “ 
 
 the forfeiture of 20s. to the use of the poor, by every one 
 who absents himself from these meetings without lawful 
 cause(i); and if negligent in their office, they are subr 
 ject to the like penalty for every default. The forfeitures 
 to be levied by some or one of the churchwardens and 
 overseers, by warrant of distress from two justices; and 
 in defect of distre^, any two such justices may commit 
 the offender to the common gaol, there to remain without 
 bail or mainprize, till the forfeiture shall be paid. But 
 the person aggrieved may appeal to the quarter sessions, 
 whose order shall bind all parties (2). The power of 
 acting is vested in the major part (3), and they are to 
 continue in office until the Easter ensuing their appoint¬ 
 ment, when others are to be elected. (4) 
 
 i 
 
 * i 
 
 It differs in this particular from that of churchwardens, 
 which continues not only until a successor is appointed, 
 but until he is actually sworn in (5). The 43 Eliz. c. 2. 
 seems to appoint them to superintend the poor, in con¬ 
 junction with those who are expressly chosen for the pur¬ 
 pose ; it appears therefore as if their authority originated 
 with the appointment of the parish overseers, and deter¬ 
 mines when that office is determined; liable however to 
 be revived by the appointment of new overseers, if the 
 churchwardens continue in office beyond the overseers’ 
 regular year. (6) 
 
 1 
 
 The most prominent points of their duty are: 1st, To 
 make a rate in order to raise a fund for the maintenance 
 
 (1) Rut the penalty for not meeting 
 in the chu:ch shall never be inflicted 
 on the overseers of the poor of extra- 
 parochial places, as they have no church 
 to meet in. Rex v. Rufford, 8 Mod. 
 39. and query if in the case of town¬ 
 ships ? 
 
 (2) 43 Eliz. c. 2. s. 2. 
 
 ( 3 ) Ibid’ s* 2* Rex v. Beeston, 
 3 Term. Rep, 592. 
 
 (4) Pe f Lee, C. J. Rex v. Spar¬ 
 row, iBott. 21. PI. 463. ante 29. 
 
 ( 5 ) ,See ante, 39. 
 
 (6) Lord Ellenborough, C. J. seem¬ 
 ed to intimate an opinion to this effect. 
 Rex v. St. Margaret’s, Leicester. 
 
 8 East 332. But whether they may 
 not continue parish officers for certain 
 purposes, see Rex v. Merevall, Burr. ‘ 
 S. C. 66l. post. vol. ii. 186. 
 
 E 4 
 
 of 
 
56 
 
 Of appointing Overseers , fyc. 
 
 of the poor. 2d, To ascertain what poor the place for 
 which they are appointed is bound to maintain. 3d, To 
 remove such persons as it is not liable to support so soon 
 as they become actually chargeable. 4th, To inspect the 
 ceconomy, and administer to the wants of their proper 
 poor. 5 th, and lastly, Upon going out of office, to make 
 up and pass their accounts, and deliver over any balance 
 in their hands to their successor, together with the pro¬ 
 perty and documents of the parish (1). These form the 
 great outlines of the law which respects the relief of the 
 poor, and will be treated of in the remainder of the 
 work. 
 
 (l) See post, vol, n. chap. kxxv. & xxxvi. 
 
 1 
 
 
 % 
 
OF THE POOR’S RATE. 
 
 CHAPTER III. 
 
 Of making , allowing , and publishing the Rate. 
 
 ^HE fund raised for the general relief of the poor, is 
 called the Poor’s Rate. (i) 
 
 It is made and levied in parishes within the jurisdic¬ 
 tion of county magistrates, by 43 Eliz. c. 2. s. 1. 
 
 Within that of corporate towns, places, and cities, in¬ 
 cluding the city of London by the same act, sect. 8. 
 
 And by 13 & 14 C.lL chap. 12. sect. 22. for extra- 
 parochial townships, and those subdivisions of parishes 
 for which separate overseers are appointed under the same 
 statute. 
 
 The power of making a rate is vested entirely in the 
 churchwardens and overseers, or the major part of them, 
 and the concurrence of the inhabitants is not neces- 
 sary. (2) 
 
 '• 
 
 (1) See - Rex v. Audley, a Salk. Salk. 531. a Lord Raym. 1013. 
 526. Holt. 576. Per Eyre, J. Rex */. St. Michael’s, 
 
 {2) Per Holt,C. J. Tawney’s case, Cornhill, 16 Vin. 425. 
 
 Under what 
 acts the rate 
 is made. 
 
 In counties. 
 
 In corporate 
 places. 
 
 In town¬ 
 ships. 
 
 By whort* 
 made. 
 
 But 
 
Of making and allowing the Rate . 
 
 But as the statute requires that it should be made by 
 the major part of the parish officers, a rate cannot be 
 made by one overseer. (i) 
 
 Overseers, If the officers refuse to make a rate, the court of king’s 
 how com- bench where a case is laid before them upon affidavit, 
 
 pellable to 5 > _ 1 • 
 
 make it. will hear both parties, and, if necessary, compel them 
 to do so by mandamus (2); and enforce it by attach¬ 
 ment in case of disobedience (3). But they will not in¬ 
 termeddle with the equality of assessment, or interfere 
 even so far as to command them to make an equal 
 rate (4). For the overseers are to take care of that in 
 the first instance, and the court of quarter sessions upon 
 appeal in the second (5). They will grant this writ, 
 however, to compel them to rate a particular description 
 of property if it be altogether omitted. (6) 
 
 Allowing The act prescribes, that the rate shall be made 
 “ with the consent of two or more justices of peace dwel- 
 “ ling in or near the same parish, or division where the 
 “ parish doth lie, whereof one to be of the quorum.” 
 The first step therefore to be taken after making the rate 
 is, to carry it to two justices for their consent, or, as it 
 is usually termed, c< their allowance.” This allowance 
 is in their individual capacity of magistrates, and not as 
 a court of session, which has no original jurisdiction 
 respecting rates. (7) 
 
 (1) Semb. Rex v. Atkins, 4 Term. 
 
 Rep. 12. 
 
 (2) Liddleston v. Mayor of Exeter, 
 
 Fol. 18. Rex v. Overseers of Weobly, 
 
 Hull’s case, Carth. 14. Rex v. 
 
 Barnstaple, 1 Barnard. 137. 
 
 (3) Rex v. Edwards and Symonds, 
 
 I Black. Rep. 637. 
 
 (4) Rex v. Weobly,ur supra. Rex 
 
 • * 1 • , What- 
 
 % •• • • 9 
 
 v. Overseers of Barnstaple, Fol. 26. 
 and see Butler v. Cobbett, 1 Bott, 
 265. PI. 258. the cate of a mandamus 
 to make an equal assessment of the 
 land-tax. 
 
 (5) Ibid. 
 
 (6) Post. 
 
 (7) Lord Raym, 758, 
 
 1 
 
59 
 
 Of publishing the Rate . 
 
 Whatever might have been the legislature’s intention 
 in requiring the consent of the neighbouring justices to 
 a rate it has been often decided that they are to act mi¬ 
 nisterially, and must allow it as a matter of form, without 
 exercising any discretion to refuse where they think it 
 unjustly and improperly made (i). But it two rates are 
 presented to them by different officers of the same pa¬ 
 rish, they are said to have an election of signing that 
 which they consider as most equitable. (2; 
 
 ' |m J ' t • * J , 4 . ’ 
 
 V ' 
 
 It seems to follow, from the allowance of a rate’s being 
 a ministerial act, that the two magistrates need not meet 
 for the purpose, but may allow it separately. (3) 
 
 Though the justices are required by the act to dwell in 
 or near the division, it is not necessary that this should 
 be stated in their allowance of the rate. (4) 
 
 • & i *' 
 
 But the place for which they allow a rate must be within 
 their jurisdiction. An allowance by county justices of a 
 rate for a whole parish within a borough, having ma¬ 
 gistrates of its own who possess an exclufive jurisdiction, 
 or for the part of a parish being so situate, is void. (5) 
 
 It is required by 17 G. II. c.9. that the churchwar¬ 
 dens and overseers, or other persons authorised to take 
 care of the poor, shall give public notice of the rate on 
 
 (0 The case of the Inhabitants of 
 Peterborow, i Sid. 377. Rex v. 
 Uttoxeter, 1 Const. 76. Rex v. 
 Justices of Dorchester, lb. PI. 94. 
 J Str. 393. "Rex v. Edwards, 1 Black. 
 637. Rex v. Kynaston, 2 East. 118. 
 
 (2) Rex v. Anon. Comb. 479. 1 
 
 Bott, 99. PI. 122. It is stated in the 
 report, that the rate which they signed, 
 was made by one churchwarden and 
 overseer; and that they confirmed 
 
 another made by another churchwar¬ 
 den and overseer. 
 
 (3) Per Lord Kenyon, C. J. and 
 Buller, J. Rex v. Hamstall Rid ware, 
 3 Term Rep. 3^0. See also Rex v, 
 Forrest, 3 Term Rep. 38. ante, 48. 
 
 (4) Cobbet v. St. Mary Lincoln, 
 16 Vin. Abr. 427. 
 
 (5) Rex v. Folly, 1 Bott, 76, 
 PI. 96. 
 
 tiie 
 
 Justices* 
 
 / 
 
 power not 
 discretion¬ 
 ary. 
 
 Confined 
 within their 
 jurisdiction. 
 
 Publication, 
 
Of publishing the Rate. 
 
 the Sunday after it has been allowed by the justices, other¬ 
 wise it is null and void. It must be published therefore 
 in the church, and on the Sunday ensuing the allowance. 
 Where notice was given on the third Sunday after allow¬ 
 ance, it was held a radical defect in the rate itself, which 
 nothing could cure (i). But the publication need not 
 be set forth in a special case stated for the opinion of the 
 court of king’s bench, respecting the validity of the rate 
 in other particulars. It is sufficient if it aver that the 
 rate was duly made; for the court, with respect to an 
 order of justices, will intend every thing to be right which 
 does not appear to be otherwise. (2) 
 
 r . ' v j 4HP 
 
 After a rate has thus been allowed it should not be 
 altered by inserting the names of others, although with 
 the magistrate’s approbation. (3) 
 
 (1) Rex v. Newcombe, 4 Term remark does not seem to apply to what 
 Rep. 368. is necessary to be set forth to shew 
 
 (a) Rex v. Aire and Calder Navi- their jurisdiction. 
 
 •ation, 2 Term Rep. 660. But this (3) See Rex v. Barrat, Doug. 449. 
 
 \ 
 
 / • 
 
4 
 
 ( 6i ) 
 
 CHAPTER IV. 
 
 Of the Time for which the Rate is to be made. 
 
 r |"HE time for which rates are to be made, is declared Lord Holt’s 
 in the statute of Elizabeth to be “ weekly or other - 0 f“ weekly 
 wise,” Upon the discretion evidently given by these or other- 
 words, Lord C. J. Holt was of opinion, that poor rates 
 ought to be made monthly, that being the period at which 
 the same act requires the parish officers to meet in vestry 
 to consider matters for the relief of the poor (i). The 
 same judge was also of opinion, that they were not em¬ 
 powered to make one for a quarter of a year in advance, 
 since a man could not move in the middle of it without 
 being charged twice (2). This inconvenience is remedied 
 by 17 Geo. II. c. 38. which enacts, that persons are to 
 pay the poor’s rate only in proportion to the time that 
 they occupy. 
 
 Great inconveniences would ensue from making rates May be for 
 for short periods. It is impossible to foresee and provide a quarter ’ 
 for every expence that may arise. The Legislature appear 
 to have seen the necessity of extending the rate beyond 
 one week in particular cases, and therefore added the 
 general words fi< or otherwise,” to empower those who 
 make the rate to adapt it to the situation of the parish. 
 
 The court of king’s bench has for these reasons deter¬ 
 mined, that without any reference to usage in the parti¬ 
 cular parish, which can have no weight in construing a 
 statute made within time of legal memory, a rate may be 
 
 X 
 
 (*) 43 Lliz. c.a. s. 2. 2 Burr. 1157. But see the opinion ©f 
 
 (2) TraCey v. Talbot, Salk. 531. Lord Kenyon, C.J. Rex v. Mayor * 
 
 I Bott, 7/. tl. 99. Rex v. Little- of Gloucester, 5 Term Rep. 346. 
 port, $Mod . 97 * Stevens v, Evans, 
 
 made 
 
62 
 
 Duration of the Date . 
 
 or six 
 months. 
 
 made prospectively, not only for a quarter of year(i), 
 but for six months (2). Neither do the judges seem to 
 point out in these decisions any definite time short of a 
 year, for which a rate is to be made. They merely lay 
 it down as a principle, that it should not be done wan¬ 
 tonly, but on a scale adapted to the probable exigencies 
 of the parish. (3) 
 
 (1) Rex v. Overseers of St. George, (a) Durrant v. Boys, 6 Term Rep. 
 
 Middlesex, 2 Black. 694. 580. 
 
 • (3) Ibid. 
 
 I 
 
 r 
 
 v 
 
 I 
 
 
 
 
 V 
 
 
 \ 
 
 
 
 * 
 
( 
 
 ) 
 
 J 
 
 \ 
 
 63 
 
 CHAPTER V. 
 
 Of the general Purposes to which the Pate is to be 
 
 applied. 
 
 : 
 
 r PHE general purposes for which this rate is to be For what 
 raised, as stated in the act of Elizabeth, are, for tobeTevied. 3 
 setting to work those who are able; relieving such as are 
 not; and for apprenticing the children of parents unable 
 to maintain them; also by 9Geo.I. for purchasing work- 
 houses (1). 18 G. III. c. 19. enacts, that money shall 
 
 be taken from this fund to repay constables, &c. what 
 they expend for the relief and removal of paupers and va¬ 
 grants, which the 13 & 14 Car. II. chap. 12. sect. 18.(2), 
 had directed to be raised by a separate rate. The poor’s Law ex¬ 
 rate seems applicable to no other purpose, except de- pellLes * 
 fraying such law expences as are necessarily incurred by 
 the overseers in the discharge of their office (3), at least 
 when the proceedings are directed by the vestry (4). 
 
 Thus the salary of an assistant overseer appointed by a For what 
 vestry meeting cannot be paid out of it (5), nor a sum not * 
 of money borrowed by the parish to re-build a work- 
 house. (6) 
 
 Where an overseer disburses money out of his private Not to reim- 
 funds to relieve the poor, he may make a rate during his 
 
 4 * - • 
 
 (i) 9 G. I. c. 7. s. 4. pences and valuation of the property of 
 
 (a) Rendered perpetual by 12 Ann. a parish which has been directed by a 
 18. majority of the vestry, can be legally 
 
 (3) Per Buller, J. Rex v. Mickle- defrayed out of it. 
 field, Cald.507. Rex Inhabitant, of (4) Per Whiles, J. Rex vt Mickle- 
 Essex 4 rermRep.591. But see Rex field. Ib. 
 
 v. Chichester, 1 Bott, 410. PI. 491. (5) Rex v. Welch and others, 
 
 Rex v. Landillow, Mic. 2 G. 2. cited, Cald. 504. 1 Bott,318. 11 . 333. 
 
 Ibid. Rex v. Mayor of Gloucester, (6) RexWayell, Doug 116. 
 
 5 Term R»p. 346. Q u , If the ex- 
 
 con- 
 
/ 
 
 Purposes for which the Rate is to he raised. 
 
 continuance in office, and re-imburse himself from the 
 produce (i); or if the rate is unpaid at the expiration of 
 his year, the succeeding overseers are directed by sta¬ 
 tute (2) 44 to levy such arrears, and reimburse their pre- 
 “ decessors all sums expended for the use of the poor, 
 “ and allowed to be due to them in their accounts. ,, (3) 
 
 But it was formerly necessary, that the parish officers 
 should in all cases make a rate during their continuance 
 in office, and obtain re-payment of the money advanced 
 out of the produce. For a rate could not be made by new 
 churchwardens and overseers to reimburse their prede¬ 
 cessor what he had applied for the poor’s support, although 
 he had been turned out of office before the end of his 
 year, and thereby lost the opportunity of making a rate 
 to repay himself(4); nor for law expences incurred by 
 former officers (5). For the act of Elizabeth is express, 
 that they are to raise a fund for the relief of the poor 
 only, and an overseer is not bound to expend money until 
 he receives it (6). So if an overseer continues in office 
 for successive years, he cannot reimburse himself the out¬ 
 lays of former years, by a rate made in the last, although 
 the rates made in antecedent years were either quashed 
 on appeal, or could not be collected as being informal; 
 for all the items of his accounts are to be confined to 
 the particular year for which the act directs they shall be 
 *■ passed. (7) 
 
 Con* 
 
 (1) Tawney’s case, Salk. 531. Rex 
 v. Ware, Fol. io. 
 
 (a) 9 G. I. c. 7. s. 4. 
 
 (3) 17 G. II. c. 38. s. 11. Rex v. 
 Overseers of Rotherhithe, 8 Mod. 
 338 . 
 
 (4) Tawney’s case, ut supra, Ld. 
 Raym. ion. 
 
 (5) Case of the Overseers of Chi- 
 
 JO 
 
 Chester, 1 Bolt, 90. n. b. s. 6. Ib. 
 317. PI. 330. Case of Overseers of 
 Landillo, Ibid. 
 
 (6) Tavvney’s case, ut supra. 
 
 (7) Rex v. Goodcheap, 5 Term 
 Rep. 159. This objection is usually 
 made matter of appeal against the 
 overseers accounts, as being air impro¬ 
 per application of the money raised 
 
 by 
 
Purposes for 'which the Pate is to he raised . < 
 
 Considerable inconvenience occurred in particular cases Tncorrve- 
 from this restriction. Unhappily the makers of the sta- 
 tute of Elizabeth did not foresee those enormous burthens 
 which their humanity has thrown upon posterity, and the 
 number of appeals w hich originate in the hope of escaping 
 from a supposed inequality of taxation. Many things 
 occur to prevent parish officers from making a rate during 
 their continuance in office. When made, an appeal 
 might render it ineffectual, not only against those who 
 dispute the rate, but against such as do not object to the 
 assessments. For overseers were afraid to collect, as they 
 might be harassed with actions to refund money which 
 they received under a void authority. If the rate was 
 quashed at sessions, the office might expire before a new 
 one could be made; and if another was previously ah 
 lowed, the collection might be again suspended by a fresh 
 appeal. In the mean time the poor must either starve or 
 be supplied by the humanity of those officers, who, if 
 prevented from making a rate for their reimbursement, 
 had nothing to trust to but the uniform honesty of every 
 rateable inhabitant of the parish, to allow, in their ac¬ 
 counts-, sums of which they had no legal means to enforce 
 payment. , 
 
 The cases already cited, shew that they could not rely 
 upon this expectation at all times with safety; and par- 
 
 by the rate, and not against the rate opinion ; for that is a subject of appeal 
 itself. Rex v. Gocdcheap, ante. It against the allowance of the overseers’ 
 is only, when the rate appears from accounts. See the opinion of Lord 
 the title to be made for this pin-pose, Kenyon. Rex v. Mayor of Glou- 
 that it forms a ground of appeal against cester, 5 Term Rep. 346. Iiut it may 
 it. Fcr if the objects of the rate, as come under discussion, as matter con- 
 set forth in the title, be lawful, the nected with making a rate, not only in 
 judges will not enter into the question, objection to the title,but upon motion 
 whether the purposes to, which it is for a mandamus to the parish officers 
 actually intended to be applied be law- to make a rate for the specific purpose, 
 ful or not, although it is stated by the Tawney’s case, ut supra, 
 justices in a case for the court’s 
 
 VOL. I. 
 
 F 
 
 ticular 
 
66 
 
 Remedied 
 by 41 G. III. 
 c. ip where 
 no rate 
 made, or it is 
 quashed* 
 
 r 
 
 Application of the Rates » 
 
 ticular circumstances which gave rise to 41 G. III. 
 0,23. proved, that a system of mischief and oppression 
 might receive effect from a rigorous application of the 
 law, as it then stood. 
 
 To remedy which, section 9. of this act provides, that 
 succeeding churchwardens, overseers, and guardians of 
 the poor shall repay and reimburse those who precede 
 them, such sums as they have advanced or expended for 
 the relief of the poor during the time that no rate or as¬ 
 sessment has been made for that purpose; or that any ap¬ 
 peal has been depending which affected the whole of such 
 rate, or upon hearing of which the same might be wholly 
 quashed. 
 
 In default of payment within 14 days after demand in 
 writing, such preceding churchwardens, &c. or any of 
 them, may apply to the sessions, who shall make an order 
 upon the then churchwardens and overseers to pay them 
 such sum as they shall think fit, which may be levied by 
 distress. 
 
 N * 
 
 The inconveniencies enumerated seem removed by this 
 provision. The law remains in other cases as it previ¬ 
 ously stood, in order to compel attention from parish offi¬ 
 cers in collecting, and enforcing payment of the neces¬ 
 sary rates during their continuance in office. 
 
( 67 ) 
 
 / 
 
 CHAPTER VI. 
 
 Of Pet'sons and Property to be rated . 
 
 i 
 
 "J"HE 43 Eliz. c. 2. enacts that competent sums to be 
 levied for the purposes therein specified, shall be raised, 
 “ by taxation of every inhabitant, parson, vicar and other, 
 €; and of every (i) occupier of lands, houses, tithes im- 
 44 propriate, propriations of tithes, coal mines, or saleable 
 14 underwoods in the said parish, for, &c., to be gathered 
 44 out of the same parish according to the ability of the 
 44 same parish.” 
 
 This is the only statutory provision which regulates 
 the description of persons and property to be included 
 in the poor rate. The i3&i4Car. II. c. 12. s. 22. 
 extends the operations of the 43 Eliz. to villages and 
 townships, but makes no alteration in the manner of 
 imposing the tax. 
 
 By this clause, the assessment is to be made upon the 
 inhabitants and other occupiers of lands, &c. according 
 to the ability of the parish, and the tax is levied 
 upon the person in respect of some particular property 
 possessed or occupied by him (2). All persons who in- 
 
 \ •f 
 
 (1) The word “ tthet ” is in- estate only is subject to them. Per 
 serted here as the statute is recited Eyre, C. J. Case v. Stephens, 
 in Bott. But all the editions of the Fitzg. 297. The statute makes it 
 statutes have it as above. See Rex v. [the poor rate] personal by subjecting 
 Andover, Cowp, 559. the goods to distress and sale and the 
 
 (a) Theed v. Starkey, 8 Mod. body to execution. If a lease be 
 314. Sir Authony Earby’s case, made, and then the lessor quits the 
 2-Bulft. 354, The poor and church parish, the lessee, not the lessor, pays 
 rates are taxes payable in respect of the tax, which goes with the pos- 
 the land, but they are not payable session and occupation, not with the 
 ®»t of the land, for the personal inheritance. P^r Price, J. Ibid. 
 
 f 2 habit 
 
 43 Eliz. 
 c. 2. s. 1. 
 
 i ' 
 
 13 Sc t4 
 C. II. c, 12. 
 s. 22. 
 
 Rate to be 
 on the oc¬ 
 cupiers. 
 
68 
 
 Who rate¬ 
 able* 
 
 Principles 
 of rating 
 property. 
 
 I. On real 
 and personal. 
 
 Persons and Property rateable , 
 
 habit (i) the district for which the rate is made, being 
 able to contribute (2), and all who occupy real property 
 there, although dwelling elsewhere, come within the 
 act (3). A corporate body is rateable (4), as well as a 
 private individual. But the king is exempt by reason of 
 his prerogative, as not being mentioned in the statute. (5) 
 
 Two great principles were laid down by all the judges 
 very soon after the 43 Eliz. was passed, respecting the 
 rateability of property. First, the assessment is to be made 
 according to the visible estate of the inhabitants, both real 
 and personal (6). For the statute renders inhabitants 
 liable to this tax, as well as occupiers of real property, 
 and must therefore affect their personal estate. 
 
 (1) “ Parishioners is a very large 
 word, taking in, not only inhabitants 
 of the parish, but persons who are 
 occupiers of lands that pay the several 
 rates and duties, though they are not 
 resident, nor do contribute to the or¬ 
 naments of the church.” 
 
 “ Inhabitants is a still larger word, 
 taking in housekeepers though not 
 rated to the poor, it takes in also per¬ 
 sons who are not housekeepers, as for 
 instance, those who have gained a set¬ 
 tlement, and by that means become 
 inhabitants. Per Lord Harwicke, C. 
 Attorney-general v. Parker, 3 Atk. 
 577 - 
 
 “ Casual sojourners seem not to be 
 liable, as if a man*takes up his lodg¬ 
 ing in a parish for a week. See Hol- 
 ledge’s case respecting a church rate, 
 2 Roll. Rep. 238.” 
 
 (a) It is a good defence to a rate 
 that the party is poor and unable to 
 pay. Per Lord Mansfield, Rex v. 
 Uffculme, a Const. 233. PI. 262. 
 But his lordship’s observation seems to 
 refer to a rate on personal estate. The 
 
 same judge observesin another reportof 
 the same case, that “ parish officers are 
 not obliged to rate a man of no abili¬ 
 ties; and he cannot oblige them even 
 by 17 G. 2. c. 38. to rate him if he is 
 not fit to be rated. Per Lord Mans¬ 
 field, C. J. S. C. Burr. S. C. 433 * 
 
 (3) Jeffrey’s case, 5 Co. 66. esta¬ 
 blishes the principle in the case of 3. 
 church rate. See the opinion of 
 Lord Kenyon, C. J. Rex v. Clapp, 
 
 3 Terra Rep. 117. post. Rex v. Tun- 
 stead & Happing, lb. 523. 1 Const. 
 626. PI. 863. 
 
 (4) Rex v. Corporation of Wick¬ 
 ham, 3 Keb. 540. Rex v. Gardner, 
 Covvp. 79. Rex v. Mayor of London, 
 
 4 Term Rep. 21. Per Lord Kenyon 
 Rex v. Saltersload Sluice, 4 Term 
 Rep. 730. Rex v. Bath Corporation, 
 14 East, 62r. 
 
 (5) Semb. Rex v . Matthews, 
 Cald. 1. 1 
 
 (6) Sir Anthony Earby’s case, 2 
 Bulst. 354. Rex v. Churchwardens 
 of Andover, Cowp. 550. Rex v. 
 White, 4 Terra Rep. 771. 
 
 Second, 
 
Persons and Pyvperty rateable . <5 
 
 Second, No inhabitant is to be taxed to contribute to a. Within 
 the relief of the poor, in regard of any estate he hath the pansli ’ 
 elsewhere in any other town or place (1). For the statute 
 expressly limits the tax by “the ability of the parish itself,” 
 and it would fall with inequality in any other way upon 
 persons of equal substance. Because those who reside 
 or have property in several districts, would be taxed other¬ 
 wise, not in proportion to their actual ability, but to the 
 number of places in which they lived or had property, 
 acting upon its total value, for they would contribute in 
 feach upon the full value of what they possessed in all. (2) 
 
 All 
 
 (1) lb. In Atkins v. Davis, Lord 
 Mansfield says, “ By constant usage, 
 “ (and I knew not upon what other 
 “ ground it is) ability to pay is roea- 
 K sured by the local rateable property 
 “ in the parish.” Cald. 336. But the 
 resolutions inEarby’s case arc reported 
 9 C. I. only 33 years after the act 
 passed, and the opinions of this great 
 judge respecting the importance of 
 usage in construing the 43 Eliz. c. 2. 
 seems overruled by subsequent deci¬ 
 sions. 
 
 (a) The question is very distinctly 
 put in the resolutions of the judges of 
 assize 1633- 18. Qu. “ Whether the 
 “ law for the relief of the poor upon 
 “ the statute of 43 Eliz. shall be made - 
 “ by ability or occupation of lands, or 
 “ both; and whether the visible ability 
 “ in the parish where he lives, orgene- 
 ral ability whatsoever ; and whether 
 “ his rent received within the parish 
 “ shall be accounted visible ability, and 
 u whether he shall be taxed for them 
 H only, and for any rent received from 
 “ other parishioners; and what shall 
 u be said visible ability ?” 
 
 The resolution in answer is not so 
 precise, via : “ The land within each 
 
 F 
 
 “ parish is to be taxed to the charges in 
 “ the first place equally and indifferent- 
 “ ly, but there may be an addition for 
 “ the personal visible ability of the pa- 
 “ rishioners within that parish, accord- 
 “ ing to good discretion ; wherein if 
 “ there be any mistaking, the sessions, 
 “ &c. or the justices must judge be- 
 “ tween them.” Dalt. Just. tit. Poor, 
 chap. 73. p.234. 235. ed. 1727. It 
 is remarked in Dalton, 231., that the 
 authority of these resolutions is not 
 very great. Some country gentlemen 
 coming to Sir Robert Heath when 
 chief justice on the circuit, put him 
 these several queries, to which he sub¬ 
 scribed his opinion, then brought the 
 same into Serjeant’s Inn Hall, and 
 proposed the same to the rest of the 
 jndges; but they differing from him 
 in opinion in many things, they never 
 came to a resolution, and so were no 
 more than his private opinion, which 
 some clerk getting, has published tho 
 same, as Justice Twysden declared in 
 the court of King’s Bench in East. 
 Term. 28 C. II. as I heard and 
 observed : and afterwards a gentleman 
 of the bar using these resolutions to 
 the third, fourth and eighth questions, 
 
 « touching 
 
7 ° 
 
 Real pro¬ 
 perty defin¬ 
 ed. 
 
 Personal 
 
 defined. 
 
 Real pro¬ 
 perty, how 
 
 Persons and Property rateable . 
 
 All estate or property within the parish is divided by 
 these resolutions into real and personal. These terms, 
 when applied to the subject of rating, are not intended to 
 denote the quantity of estate, or to distinguish between a 
 freehold and chattel interest. Such distinctions are im- 
 matei ial with reference to statutes which, in rating real 
 property, lay the tax upon the occupier according to the 
 actual value of the thing occupied, without regard to the 
 extent or quantity of his interest. (i) 
 
 The meaning of real property in the poor laws, appears 
 to have been confined in many cases to immoveable things, 
 which are the direct object of sight and touch, and capa¬ 
 ble of occupation according to strict legal intendment, 
 and to be synonymous to what is comprehended under 
 the term land. More recent decisions seemed to incline 
 towards considering it as extending likewise to all incor¬ 
 poreal rights which issue out of lands and are included 
 under the appellation of a tenement (2), but subsequent 
 determinations have again confined it within its ancient 
 and less extensive signification. 
 
 § V» . . ' ' f r A 
 
 u By personal property is understood stock in trade, 
 “ goods, money, and all other moveables, which may 
 “ attend the owner’s person wherever he thinks proper 
 “ to go.” 
 
 It may not be improper to observe in this place, that 
 when a rate is imposed on real property, it is laid upon 
 
 touching putting out apprentices as an 
 authority to his purpose, Justice Twys- 
 den said, “ why do you use that as an 
 “ authority which all the judges dis¬ 
 claimed ?” They are however evi¬ 
 dence of what the chief justice took 
 the law to be in 1633, and the legis¬ 
 lature seems to have had them in con¬ 
 templation when regulating the poor 
 by statute, in more instances than one. 
 Mr. Caldecott in note (c.) p. 15. of 
 
 his accurate reports, observes, that 
 it appears from Rex v. Fairfax, Carth. 
 94. Comb. 164. 1 Show. 7. and 
 
 3 Mod. 27o. 271. that the weight of 
 evidence is in their favour, as having 
 been recognized by all the judges, or 
 at most with a single exception. 
 
 (1) Sir Anthony Earby’s case, ut 
 supra, 68. and post. 82. 
 
 (2) Lord Bute v. Grindall, 2 H, 
 Black. 263. and post. sect. a. p. 8 z 
 
 the 
 
V 
 
 Persons and Property rateable\ 
 
 the specific thing taxed, which should be appropriately describe*in 
 described in the rate, although techinal accuracy is al- rate ' 
 together unnecessary. It is immaterial also whether the Kes ^ encs 
 occupier of this property reside within the parish or not, immaterial, 
 for he becomes an inhabitant for the purpose of assess¬ 
 ment, by occupying property which is subject to the 
 tax.(i) 
 
 But personal property must be rated in a different Persom! 
 manner. As it is only the excess of that property which j^ence 
 the person has visibly within the parish beyond his debts material, 
 that is rateable, it admits of no other than a very general 
 description in the rate (2); and although it exists in the 
 parish, it cannot be rated unless the proprietor reside 
 there also. (3) 
 
 In shewing how far and when real property can be Requisites 
 assessed, for the poor’s relief, it may render the subject property* 
 more intelligible, briefly to specify those general principles rateable, 
 or canons upon which its rateability depends in each par¬ 
 ticular district. 
 
 1 ft, It must not be excepted out of the statute. 2d, 
 
 It must yield a profit. 3d, It must be occupied. 4th, 
 
 It must not be rated twice. 5 th, It must be situated 
 within the parish or township for which the rate is made. 
 
 All these qualifications must concur in order to render 
 the rate upon a particular subject valid, and they seem 
 equally essential to a rate on personal property. 
 
 SECT. I. 
 
 Of rating Land , Houses , and Projits annexed thereto . 
 
 The first kind of real property mentioned in the statute 
 is “ land and houses” They are put by way of example, 
 
 % r e 
 
 (1) See ante, 68. Collinson, East. 43 G. III. 3 Burn’s 
 
 (2) See instances, post. Just. 22d edit. 939. Rex <v. Jones, 
 
 ( 3 ) v ‘ Liverpool. Rex v. Trin. 47 G. III. 8 East,451. post. 
 
 f 4 and 
 
* 
 
 Hating Lands and Houses , SfC. 
 
 and not as excluding other kinds of real property of a 
 similar nature; for, not only lands and houses, but shops, 
 sheds, and all things real which render an annual revenue, 
 are subject to the rate. (i) 
 
 1. Though the tax is laid upon the land or house, it is 
 in respect of the revenue or annual profits which issue 
 from them, and that whether they are produced by na¬ 
 ture or by means wholly artificial; for, things very dis¬ 
 tinct from the natural profits of land are rateable under 
 that name; the land being considered as the principal, 
 the profits of which are augmented by the annexation of 
 the accessary. 
 
 2 . Thus not only those who have the exclusive enjoy¬ 
 ment of land for the purpose of turning on their cattle on 
 
 , it are rateable as the tenants. (2) 
 
 as a mineral ' ' 
 
 • • £ ' . 
 
 But where certain lands and buildings at Cheltenham, 
 containing four acres and a well of mineral water thereout 
 arising, were let at the yearly rent of iool.; the lands 
 and buildings, independent of the well, being of the 
 value of about 20I .per annum. The rent paid for the mi¬ 
 neral water of the well was 80I. The tenant was rated 
 upon iool. per annum for the premises, by the description 
 of “lands,” and the rate was held to be good. For, it is 
 not a rate upon the profits of the well, but upon four 
 acres of land let at 1 ool. 'per annum , the value of which 
 • arises partly from the buildings, and partly from the 
 spring that produces the mineral water; therefore the 
 profits of the spring are part of the produce of the land, 
 
 (1) 4 Com. Dig. tit. Justices of the “ nue, must be taxed to the poor.’* 
 Peace. B. 66. p. 565.4th edit. The Dalt. 235. Indeed, the term land, in 
 resolution of the judges of assize in its strict legal signification, compre- 
 1633, accords with this opinion. It hends all these denominations of real 
 being taken perhaps from the 19 Qu. property: for, “it includes, not only 
 Whether shops, salt-pits, sheds, profits the face of the earth, but every thing 
 <of a market, be taxable to the poor, as under it or over it.” 2 Black. Com. 
 w«ll as lands,'coal-minesj&c. expressed booki. chap. 2. p. 18. 
 
 111 the statute? Resol. “ All things (2) Rex v. James Watson, 5 East* 
 
 ** which are real, and in yearly reve- 480. 
 
 11 and 
 
 t 
 
 72 
 
 *. Natural 
 profits of 
 land. See. 
 
 2 . Natural 
 productions 
 connected 
 with land ; 
 
73 
 
 Rating Lands and Houses , §c. 
 
 and as such ought to be rated (i). In Worcestershire 
 and Cheshire, where there are salt springs, the rent of 
 the land is increased considerably on that account. (2) 
 
 3. By 17 Geo. III. c. 18. passed for more effectually 
 completing the navigation of the river Thames, the city 
 of London purchased an ancient barge-way or towing- 
 path, with certain ancient tolls thereto belonging, situate 
 within the hamlet of Hampton Wick, which maintains 
 its own poor. In pursuance of the act they r discontinued 
 the old tolls and collected new ones, authorised by the 
 statute, and let the annual herbage and pasture of the 
 barge-way at a yearly rent, the tenant of which was rated 
 for the same. It was held that the corporation was as¬ 
 sessable to the poor rates of the hamlet, for such tolls as 
 became due there; for, the rate is made upon te the barge¬ 
 way and the toll gate,” and the corporation have the in¬ 
 heritance and ownership of the soil, which is the subject 
 matter of the rate; and being occupiers, notwithstanding 
 the demise of the herbage, they are liable to be: rated. (3) 
 
 4. So land purchased by a company, and converted 
 into a dock by statute, which declares that the shares of 
 the proprietors shall be considered as personal property, 
 are rateable for the amount of the annual profits, under 
 the appellation of a dock, although personal property is 
 not rated in the parish; for, it is landed property lying 
 there, and was liable as such before the act passed; the 
 legislature in declaring the shares personal property, did 
 not mean to exempt this land which was rateable and 
 rated before, but only to declare that it should go to exe¬ 
 cutors instead of heirs. (5) 
 
 5. Also the lessee in possession <c of a fishery of the 
 u Halves and Halvendales with the fishings called Un- 
 
 (1) Rex v , Miller, Cowp. 619. (3) Rex v. Mayor of London, 4 
 
 Per Lord Mansfield, C. J. Atkins v. Term Rep. ai. 
 
 Davis, Cald. 338. (1) Rex v. Dock Company of Hull, 
 
 (2) Per Lord Mansfield. Rex v. 1 Term Rep. 219. 
 
 Miller, ut supra. Resolution of Judges, 
 
 1633. ut supra, n. 1. p. 72. 
 
 3. Artificial 
 profits of 
 land; as of 
 a towing- 
 path. 
 
 4. Of a 
 dock. 
 
 Several 
 
 fishery. 
 
 (( lawater, 
 
74 
 
 Lock and 
 tunnel of a 
 canal, &c. 
 
 Lot & cope. 
 
 
 Rating Lands and Houses , Sfc. 
 
 “ lawater, with the appurtenances to the Halves due 
 £C and accustomed within the river Severn,” is rateable 
 for them as occupier of so much lands, covered with 
 water over which the fishery is enjoyed, (i) 
 
 6 . Upon the same principle the lock and tunnel of a 
 canal is rateable for the dues and rates which become due 
 there, inasmuch as they constitute its profit (2). So 
 likewise profits accruing in the parish from a reservoir 
 for collecting water, for the purpose of supplying a city 
 with water, may be included in an assessment upon 
 “ the reservoirs and water kept thereinfor they being 
 comprehended within the legal description of land are 
 clearly rateable. (3) 
 
 7. Further likewise, a direct interest or profit arising 
 from a right to take part of the soil or its produce, is 
 rateable when the land is not liable to assessment in 
 other respects. Such are the lot and cope of a lead 
 mine (4) and the toll and tin dues of a tin mine (5); 
 lots, toll, and free share of calamine to be raised within 
 a manor (6); and if a man has taken a lease of land 
 with privilege to dig for mines, he may be rated for the 
 
 land. (7) 
 
 (1) Rex v. Ellis, Trin. 53 G. III. 
 Maule Sc Selvv. MSS. 
 
 (a) Rex v. Sir Archibald Macdonald, 
 12 East, 334- See this case at length, 
 post. 119. Under this head, according 
 to recent decisions, all cases cf assess¬ 
 ment on tolls where the proprietor 
 does not reside in the parish, should 
 more properly be classed ; but the au¬ 
 thor has postponed a more full state¬ 
 ment of these cases, to the subse¬ 
 quent section, as it appears to him that 
 the general subject will thereby be ex¬ 
 plained more clearly. These cases 
 are Rex v. Page, 4 Term Rep. 543. 
 Aire & Calder Navigation, a Term 
 Rep. 660. Rex v> Proprieters cf Staf¬ 
 fordshire Navigation, 8 Term Rep. 
 
 *3 
 
 340. Rex. v. Salterload Sluice, 4 Term 
 Rep. 730. Rex. v. Sculcoates, 12 East, 
 40. 
 
 (3) Rex v. Corporation of Bath, 
 14 East, 609. Rex v. Rochdale Com¬ 
 pany, Trin. 53 G. III. Maule & Sehv. 
 MSS. 
 
 (4) Post 83.; and see the observa¬ 
 tion n. (l.) Rovvls v. Gells, Covvp. 451. 
 post. 83. 
 
 (5) Rex. v. St. Agnes, 3 Term Rep. 
 480. post. 
 
 (6) Rex v. Baptist Mill Company, 
 East. 54 G. III. post. Maule & Selw. 
 MSS. 
 
 (7) Per Lord Mansfield, Smelting 
 Company v. Richardson, 3 Burr. 1341. 
 1 Black. Rep. 349. 
 
 8 . S# 
 
Rating Lands and Houses , fyc. 75 
 
 :7 * W ■ ' V * ; •' ' ! I 
 
 8. So the occupier of land, over which a way-leave or Wayleav;. 
 way-leave waggon-way is erected, for the purpose of 
 carrying coals from his mine, is rateable for the value of 
 the waggon-way. (1) 
 
 9. Incorporeal hereditaments have been deemed rate¬ 
 able as an adjunct profit when annexed to lands and 
 houses, although not issuing from thence. Thus an 
 estate may be rateable in a higher proportion, on account 
 of a right of common being appendant to it, (2) and, as 
 it is said, although the common land itself is situate in 
 another parish. (3) 
 
 Tncoiporeal 
 heredita¬ 
 ments an¬ 
 nexed to 
 
 land there. 
 
 10. In the same manner a real subject has been held Personal 
 rateable according to its annual value, although that value „exed tVit • 
 be derived from the annexation of a personal chattel. As ^ ac d h t '"® hc 
 where a corporation, being possessed of a house, erected building, 
 a machine in the street leading by the said house, for the 
 purpose of weighing waggons, carts, &c. loaded with 
 coal, &c. at 2d. a ton, the steelyard part of the said 
 weighing machine was, and always had been, in the said 
 house. The corporation was rated for the machine house, 
 according to the annual value not only of the house it¬ 
 self, but of the clear profits of the machine. The rate 
 is good, for they are one entire thing, and the house is 
 Tendered much more valuable from the machine’s being 
 appurtenant thereto. (4) 
 
 Some reliance seemed to have been placed by the court 
 in this case upon the machine being affixed, and as such 
 constituting part of the freehold. 
 
 But where a building, called the engine-house, con- Pers01,I J 
 sisted of a bay of building 18 feet long and 19 wide, in chattels efc 
 
 (i) R«x. Bell, 7Term. Rep. 598. judge only states that u possibly** the 
 (a) Per De Grey, C. J. Kemp. v. law may be so. 
 
 Spence, a Black. 1245. (4) Rex St. Nichola* Gloucester, 
 
 (3) Sod. Jud. Ibid. But the learned Cald. 262. 
 
 which 
 
76 
 
 with it, 
 though not 
 fixed. A 
 carding 
 machine. 
 
 / 
 
 Mating Lands and Houses, fyc, 
 
 r ' 1 ' , 
 
 which there was a carding machine for manufacturing 
 cotton, not fixed to the premises, but capable of being 
 moved at 'pleasure. The building, independent of the 
 machine, was worth only two guineas per annum . The 
 building and machine together were rated at 3 61 . It was 
 not the usage of the place to rate personal property (1). 
 The engine is generally worked with water, but frequently 
 by the hand. The building was not a dwelling house, 
 nor erected for the purpose of receiving the engine. 
 There was in the same building another carding and a 
 tumming machine (2). All the engines were placed on 
 the floor, and no ways annexed or fastened to the same, 
 but might be moved at pleasure, and carried out and 
 worked in any other place, either by means of water or 
 manual labour, and were not adapted to any particular 
 building. The frame in which the engine stood was 12 
 feet long, 3 feet 11 inches broad, 2 feet 9 inches high; 
 the semi-diameter of the largest cylinders, with a small 
 roller at the top, rising 20 inches above the frame; the 
 engine sinking in the frame 17 inches. One L. W. was 
 lessee of the premises under the owners, and subject by 
 his lease to discharge the premises from taxes; the 
 appellant was the under-tenant, but L. W. paid the 
 taxes. 
 
 The court were of opinion, that though it did not 
 clearly appear whether the carding-machine was actually 
 
 (1) This was the substance of the 
 case as originally stated by the court of 
 quarter sessions. But the court of 
 king’s bench sent it back to be re¬ 
 stated, requiring them to return an¬ 
 swers to the following inquiries ? 
 “ Whether the engine mentioned in 
 “ the said order is worked with water 
 “ or with horses ? and whether the 
 “ house wherein the said engine stands 
 t‘ is a dwelling-house, or built for the 
 u purpose *f receiving the engine ? 
 
 “ and in what manner the engine is 
 “ put up in the engine-house, and 
 “ what is its size and bulk ? and also* 
 whether the owner of the building 
 “ has contracted to discharge the oc- 
 “ cupier of all the taxes ?” The re¬ 
 mainder of the above case is the re¬ 
 turn to this order. Cald. a66. 
 
 (a) These were not rated; nor, so 
 far as can be conjectured from the 
 case, demised with the building. 
 
 fixed 
 
Rating Lands and Houses , fyc. 77 
 
 fixed to the building or not (i), yet being demised with 
 it, and forming one entire subject, and the rate being on 
 the building, it was properly rated for the entire profits, 
 the house acquiring a greater value from the use to which 
 it was put, and that it fell exactly within the case of 
 Rex v. St. Nicholas, Gloucester. (2) 
 
 Two of the judges were also of opinion, that the en¬ 
 gine was rateable as personal property, and that the find¬ 
 ing by the justices “ that it was not usual to rate personal 
 “ property in the place,” made no difference upon that 
 question. 
 
 The remaining judge said, it was enough to enable the 
 court to confirm the rate, that part was rateable, viz. the 
 house, and the rate being on the house, the court would 
 
 not interfere with the quantum of the rate. (3) 
 
 • 
 
 So a tenement of little or no value, fitted up as a malt- ^J aclim « r y 
 
 1 i 1 of a malt- 
 
 hOUSe, and a malt-mill put into it, then the whole is let house. 
 
 together; the whole must be estimated together as any 
 
 qther leasehold property, according to its value. (4) 
 
 It is also laid down by another judge, that (S if a bil- A Mil¬ 
 liard-table stand in a house, and the house should in re- 
 
 (1) “ It seems to me that this 
 “ case is still imperfect; for it is not 
 “ stated negatively, that this engine, 
 
 * while it is in a state of working, is 
 “ not some way or other fixed to the 
 “ house. It is only stated that it is 
 “ not fixed to the floor. But it may 
 M be fixed to the walls of the building 
 “ without being fixed to the floor. 
 
 We can assume no facts on either 
 
 * side; but one should suppose that 
 “ it must be fastened in some way, 
 “ otherwise, as it is worked by water, 
 “ the weight of the water must 
 ¥ displac* if.** Askhurst, J. Cald. 
 V 2 - 
 
 (a) Rex <v. Hogg,^ Cald, 266. 
 I Term Rep. 721. 
 
 (3) Ibid. But in Rex v. the Leeds 
 and Liverpool Canal Company, where 
 a rate was made upon the tolls of a 
 canal, part of which were rateable, 
 and part exempt by statute, the court 
 quashed the rate, it being the business 
 of those who made it to apportion it. 
 5 East > 3 * 5 - 
 
 (4) Per Grose, J. Ibid. Accord¬ 
 ing to the report in Caldecot, the 
 learned judge supposes this mill to b« 
 removable at pleasure. Cali. 275. 
 
 spect 
 
78 
 
 Doubts as to 
 incorporeal 
 heredita¬ 
 ments being 
 rateable per 
 se. 
 
 Hating incorporeal Hereditaments . 
 
 spect of such table let at a higher sum, it is rateable while 
 the table continues there, and it is so let at the advanced 
 rent.” (i) 
 
 SECT. II. 
 
 Incorporeal Hereditaments per se. (2) and herein of rating 
 Rents , Tolls, and other Profits, 
 
 Property, such as is described in the preceding 
 section, is rateable to the poor by reason of its local ex¬ 
 istence within the district for which the rate is made, 
 without regard to the occupier’s residence within the 
 limits. But incorporeal hereditaments seem to stand in a 
 different situation. That most of these profits are rate¬ 
 able when the right or thing from which they accrue is 
 annexed to lands or houses, appears fully settled by the 
 foregoing cases (3); but whether an incorporeal right 
 yielding an annual profit, is rateable in the hands of one 
 who does not reside within tKe district for which the rate 
 is made, and who has no possession of the soil out of 
 which such profit arises, and to which it can be consi- 
 
 (1) Per Willes, J. arguendo. Rex tenements. “ Tenement, in its ori- 
 •v. Sr. Nicholas, Gloucester, ut supra, ginal, proper, and legal sense, signifies 
 If this case proceeds on the supposition every thing that may be holden , pro- 
 that the billiard-table need not be vided it be of a permanent nature; 
 affixed to the floor ; or if Rex v. Hogg whether it be of a substantial and 
 goes the length of establishing, that sensible or of an unsubstantial ideal 
 things let together with a house in the kind. Thus liberum tenementum, 
 same demise, and yielding a profit, are frank-tenement or freehold. is applica- 
 rateable whether fixtures or not; a ble not only to lands and other solid 
 house leased out ready furnished, ora objects but also to offices, rents, corn- 
 farm demised ready stocked, seem mons, and the like, Co. Lit. 6. And as 
 rateable for the intire conjunct value, lands and houses are tenements, so is 
 But furniture is not rateable as per- an advovvson a tenement : and a 
 sonal property. Rex v. White, 4 Term franchise, an office, a right^of common. 
 Rep. 771. Nor the stock necessary a peerage, or other property of the 
 for the culture of a farm. Queen v. like unsubstantial kind,are all of them, 
 Barking, 2 Ld. Raym. 1280. 16 Vin. legally speaking, tenements. Co.Lit. 19, 
 Abr. 426. See post. No question 20.” 2 Black Com. book 2. chap. 
 was raised in these cases as to the 17. 
 
 ■owner's residence. (3) See also R#x v. J. Nich*lson, 
 
 (2) They might perhaps with more 12 East, 330., and other cases cited, 
 strict proprietT be called incorporeal post. 
 
 \ f dered 
 
79 
 
 Rating incorporeal Hereditaments. 
 
 f 
 
 tiered as annexed, has formerly created considerable 
 doubt among the judges. 
 
 The act speaking of rating real property, as distin¬ 
 guished from rating an inhabitant, directs the assess¬ 
 ments to be laid on the occupier, and the doubt was 
 whether this kind of property lies in occupancy. It was 
 contended, that it did not, according to the common law 
 sense of the word, since actual possession could not be 
 delivered. No ejectment would lie to recover the thing 
 itself, nor could trespass be brought against those who 
 infringed the right. (i) 
 
 It was said therefore, that a right of common cannot 
 be rated, as not being the subject of occupation (2). It 
 was doubted among the judges for the same reason, 
 whether the privilege of taking herbage and pannage is 
 rateable (3). The annual profits of a fair have been in¬ 
 cidentally held not to be so (4): and according to one 
 report it seemed intimated by the judges, that the tolls of 
 a light-house were not rateable, only because the light¬ 
 house was not made the subject of the rate (5). In a re¬ 
 cent case also it was held, that a mere easement in the 
 soil of another, such as a right of passage for which a 
 certain annual rent is payable, Is not rateable. There¬ 
 fore, where a person is possessed of a waggon-way, and 
 another agrees with him for the use of it for carrying his 
 coals at so much per ton, the latter at least is not liable 
 
 (1) Jones v. Maunsel), Doug. 302. 
 See the opinion of Lawrence, J. 
 Rex i/. Watson. 5 East, 485. of Lord 
 Ellenborough, C. J. Rex v. Bishop of 
 Rochester, East,353. 
 
 (2) Per De Grey, C. J. Kemp v. 
 Spence, % Black. 1245. and Rex 
 v. Watson, ante, (1). 
 
 (3) Jones v. Maunsell, Dougl. 302. 
 See Rex v. Minchin Hampton, 3 Burr. 
 
 2310. Lord Bute v. Grindall, 1 Term 
 Rep. 33^- 1 H. Black. 207. 
 
 (4) Rex v. Brograve, 4 Burr. 
 2291. 
 
 (3) Rex v. Rebowp, Dougl. 118. n. 
 where it is expressly stated that the 
 court observed that it was not set 
 forth in the case that Rebowe was 
 rated for the house, but only for the 
 tolls. 
 
 As incapable 
 of occu¬ 
 pancy. 
 
 
 
 to 
 

 So Hating incorporeal Hereditaments. 
 
 , V 
 
 to be assessed (i). It has been doubted likewise whether 
 a person who has a mere permission to turn his cattle on 
 another’s land is rateable as an occupier* (2) 
 
 Contrary 
 
 ©pin;on. 
 
 But the general principle upon which these cases are 
 said to depend, was doubted by those judges who leaned 
 to the other side of the question; and it was observed that 
 property has been considered as capable of being occu¬ 
 pied within the meaning of the statute of Eliz. although 
 it is not so according to the strict common law sense of 
 the word. 
 
 Sir Robert Heath, C. J. was of opinion so early as 1633, 
 that the profits of a market might be taxed to the poor. (3) 
 
 Tolls. In 27th Car. II. the tolls of a corporation were held 
 rateable; but it does not appear from the reports, what 
 the nature of these tolls were, or for what they were 
 paid (4). In more recent cases, the profits arising from 
 tolls paid for passing a particular sluice (5), or bridge, 
 being private property (6), and also those from tolls pay¬ 
 able for carriage of goods on navigable canals, have been 
 adjudged liable to this assessment. (7) 
 
 When not 
 rateable. 
 
 Turnpike and other tolls paid for the public benefit, 
 and not of private individuals, are not subject to this tax ; 
 
 (1) Rex v. JolifFe, 2 Term Rep. 
 90. Per Lord Kenyon, C. J. Rex 
 v. Bell. 7 Term F„ep. 600. 
 
 (2) Per Lord Ellenborough, C. J. 
 Rex v. Aberavon, 5 East, 453. and 
 Rex v. Watson, 5 East, 480. 
 
 (3) Ante, 72. n. (1). 
 
 (4) Rex v. Corporation of Wick¬ 
 ham, 3 Keb. 540. Ifreem. 419. 16 
 
 Vin. Abr. 425. Ashhurst, J. supposed 
 it might be for piccage, which is, in 
 nature of a rent for land, for it is an 
 acknowledgment payable to the owner 
 of the land in respect of the use made 
 of the soil; i. e. breaking the ground 
 for the erection of booths and stalls in 
 
 a fair or market. Atkins v. Davis, 
 Cald. 382. But Willes and Buller, J. 
 held it to be good law as a common case 
 of toll. lb. 328. lb. 333. 
 
 (5) Rex v. Cardington, Covvp. 58. 
 I Bott, 152. PI. 177. But Ashhurst, 
 J. denied this case to be law. Atkins 
 v. Davis, Cald. 332. 
 
 (6) Jones •y.Maunsel,Doug. 302. n. 
 
 (7) Rex v. Page, 4TermRep. 
 543. Rex v. Aire and Calder Navi¬ 
 gation, 2 Term Rep. 660. Rex 
 v. Proprietors of Staffordshire Navi¬ 
 gation, 8 Term Rep. 340. and see Rex 
 v. Mayor of Loudon, 4 Term 
 Rep. 21. 
 
 but 
 
Rating incorporeal Hereditaments , 
 
 81 
 
 but this might be accounted for, upon the principle that 
 there is no beneficial occupier, (i) 
 
 It has been urged, however, that these instances are Doubts, 
 not decisively in point to impugn the principle relied on. 
 
 That in those of tolls of a sluice or bridge, the persons 
 rated might have some property in the soil on which they 
 stood (2); and in the case of navigable canals, the land is 
 always purchased by the proprietors of the canal, so that 
 it resembles lands converted into a dock, which are held 
 rateable for the profits. (3) 
 
 The casual profits issuing from the realty, seem not Casual pro¬ 
 to be rateable, at least under the general circumstances fits ' 
 attending this species of property. 
 
 Thus the Lord of the Manor is not rateable for the 
 manor itself (exclusive of the demesne lands) consisting 
 of quit-rents, fines for the removal of copyholds and 
 other casual fruits and profits, he occupying nothing else 
 in the parish (4). On a question whether the herbage 
 and pannage of Rockingham forest was rateable, the 
 court were devided in opinion. (5) 
 
 A mere incorporeal fishery is not within the statute of incorporeal 
 Eliz. for the party to be rateable, if non-resident, must 
 be an occupier of land. (6) 
 
 (1) Per Lawrence, J. Rex v. Staf¬ 
 fordshire Navigation, lb. & pest. 87. 
 
 (a) See Rex v. Sir A. Macdonald, 
 12 East, 334. post. 119. But see the 
 opinion of Buller, J. Atkins v. Davis, 
 Cald. 326. that in Rexi/. Cardington, 
 Mr. Palmer, who was rated for the 
 tolls, had no property either in the 
 soil or water, nor any thing but a 
 power of erecting sluices and taking 
 tolls. 
 
 (3) Ante, 73. Per Lord Ellen- 
 borough, C. J. Rex v. J. Nicholson, 
 12 East, 330. In Rex v. The Pro¬ 
 prietors of the Staffordshire Canal, it 
 
 VOL. I. . 
 
 was tken for granted that the rate 
 was not upon the land, but upon the 
 tolls. See the opinion of Le Blanc, J. 
 ante, 80. (7) post, 112. 
 
 (4) Rex v. Vandewall, 2 Bun - . 991. 
 See also Carth. 14. 
 
 (5) Jones v. Maunsell, Dougl. 302. 
 The court granted a new trial that 
 the point might be settled in a special 
 verdict. But it seems not to have 
 been stirred again. See the opinion of 
 Lord Mansfield, C. J. Lord Bute v. 
 Grindall, 1 Term Rep. 338. 
 
 (6) Per Bayley J. Rex. v. Ellis, 
 Trin. 53 G. 3. Maule and Selw. MSS. 
 
 j The 
 
 % 
 
82 Rating incorporeal Hereditaments . 
 
 The most usual species of incorporeal hereditaments 
 upon which questions of rateability have arisen, are i. 
 Rents, 2. Tolls. 
 
 Rents why i. Rents could not be usually rateable eo nomine , for 
 rateable Uy they are commonly rated in the land (i), and if the land¬ 
 lord should pay on his rent, and the occupier in respect 
 2. Ground of his possession, the premises would in effect be rated 
 
 rents • 
 
 twice. But ground rents have been held rateable.(2) 
 
 3. Quit Quits rents, and the casual profits of a manor, have 
 been held not rateable (3); but this decision is maintain¬ 
 able as to quit rents, upon the principle of excluding a 
 double rate, and the reason assigned by Lord Kenyon, 
 C. J. why a profit in the nature of rent could not have 
 been rated, was because that would be to rate the sub¬ 
 ject matter twice (4). Lord Mansfield appears to have 
 been of the same opinion, and Mr. Justice Blackstone 
 seems to have doubted likewise whether some rents were 
 not assessable to the poor (5). Lord Holt declared, that 
 quit rents were determined to be rateable. (6) 
 
 (1) Per Eyre, C. J. Lord Bute 
 v. Grindall, i Term Rep. 338. a H. 
 Black. 265. Sir Anthony Earby’s 
 case, 2 Bulst. 354. 
 
 (2) Rex v. Gibbs, Comb. 6 a. 
 1 Bott, 115. PI. 147. But quere whe¬ 
 ther such an assessment would not in 
 most cases be as bad as a double rate ? 
 
 (3) Rex v. Vandewall, a Burr. 
 991. This decision seems to have 
 turned upon the ground of usage, as 
 never having been rated before. For 
 usage was considered by Lord Mans¬ 
 field, as a cotemporaneous, or rather 
 consuetudinary exposition of the sta¬ 
 tute, and relied upon as a rule of de¬ 
 cision, in this and other cases. But 
 besides that, the determination re¬ 
 ferred to by Lord Holt precluded the 
 
 presumption of general usage: it is 
 now settled, that usage cannot be re¬ 
 sorted to, in order to limit the express 
 meaning of this modern statute. See 
 the opinion of Buller, J. Atkins r. 
 Davis, Cald. 326. post.93. 1 ° Row 11 s v. 
 Gells, Lord Mansfield seems to con¬ 
 sider the reason why the casual profits 
 of a manor are not rateable, to be 
 that they are not annual, for there 
 may be none for years. Cowp. 451» 
 
 (4) Per Lord Kenyon, C. J. Rex 
 v. Alberbury, 1 East. 535. Et per 
 Eyre, J. Comb. 264. 
 
 (3) Lowndes v. Horne, % Black. 
 Rep. 1252. 
 
 (6) Per Holt, C. J. Comb. 264. 
 See Hull’s case, Carth. 14, Eyre, J. 
 contra. 
 
 Where 
 
Rating incorporeal Hereditaments. 
 
 Where profits issue immediately out of land, and arise 
 from the ownership thereof, and form as it were part of 
 the soil or produce, it seems still to be considered as law, 
 that the possessor is rateable, unless it had been previ¬ 
 ously assessed in another shape. Thus where the crown 
 demised for years at a yearly rent, all those mines of lead 
 with their appurtenances, within the soke and wapentake 
 of W. with lot and cope ; the first of which is a duty of 
 every 13 th measure of lead ore dressed and made mer¬ 
 chantable ; and the latter a duty of 6 d. for every load, 
 or nine dishes of lead ore raised at all mines within the 
 said soke, &c.; both being received by the lessee without 
 any risk or expence of working the mines, he is rateable 
 for the lot and cope according to their annual value, and 
 as that varies; for it is part of the owner’s visible real 
 property in the parish; not a casual profit, but an annual 
 revenue, and the immediate lessee of the lead mine not 
 being rateable, it is not twice rated. (1) 
 
 So 
 
 (1) Rowls v. Gells, Cowp. 451. 
 and see the opinion of Buller, J.Rex. 
 v. Carlyon, 3 Term Rep. 385. The 
 report of Lord Mansfield’s judgment 
 is “ The poor’s rate is not a tax upon 
 ** the land, but a personal charge in 
 “ respect of the land. The present 
 “ is a personal charge by reason of 
 ** the annual profits which the les- 
 “ see of the crown receives out of 
 ** the land, and which is not charged 
 “ at all before to the poor. In gene- 
 ** ral the farmer or occupier of land, 
 *‘and not the landlord, is liable to 
 “ this tax; for it arises by reason of 
 “ the land in the parish ; and the 
 ** landlord is never assessed for his 
 “ rent, because that would be a dou- 
 <f hie assessment, as his lessee has 
 “ paid before. Lead mines are not 
 e * within the statute 43 Eliz. c. a. 
 
 They are in themselves uncertain, 
 
 G 
 
 “ and may prove unsuccessful to the 
 “ adventurer. Taxes therefore upon 
 “ the adventurers would he hard, 
 “ and they are excused. But ti e 
 “ person, lord, or landlord, who, in 
 “ case they do prove of value, re- 
 “ cc-ives a stipulated benefit from 
 “ the profits or value of them, is not 
 “ excuseable upon the same ground, 
 “ and therefore is expressly charged 
 “ to the land tax as that falls upon 
 “ the landlord. He is alike liable 
 “ to the poor’s rate for his visible 
 “ real property in the parish, though 
 “ when the poor’s rate is a charge on 
 “ the lessee, the landlord does not 
 “ pay in respect of his rent. When 
 “ the adventurer as lessee of 
 “ the mine pays nothing, it is no 
 “ double tax in any light, because 
 “ the lord pays not for that which 
 “ the lessee or adventurer is excused 
 > “ from 
 
 
 83 
 
 4. Lot and { 
 cope of a 
 mine. 
 
84 
 
 5 . Farm 
 tin. 
 
 i 
 
 Rating incorporeal Hereditaments . 
 
 So the proprietor of a certain dish or measure arising 
 out of certain lands ahd tin bounds in the parish, called 
 toll and farm tin, which toll is one fifteenth part of all 
 the tin gotten, and the farm tin is one twelfth part after 
 the said fifteenth is deducted for toll of all tin gotten 
 within the tin bounds in the parish, which dues are 
 payable by the laws and customs of the stannaries of 
 Cornwall, and is paid free and clear of all risk and de¬ 
 ductions, was upon the same principles adjudged rateable 
 for all annual profits, although the amount of the toll 
 varies, and is uncertain (i). These cases have been con¬ 
 sidered in the nature of rents paid to the owners (2), and 
 to depend upon the same principle; for whether it is a 
 return in kind, or money, was supposed to make no 
 distinction; and that it made as little, whether a re¬ 
 version was annexed to the rent or not. 
 
 1 
 
 But the more recent determinations seem to place 
 
 “ from paying for, but the lord pays “ to be rated for the property.” In 
 “ for his own. It is not mere casual this case, part of the property rated 
 “ profit, but an annual revenue if was a monied duty of 6d. per load 
 “any, and very different from the of lead ore raised from the mine, and 
 “ casual profits of a manor which it did not appear whether the lessee 
 “ are not annual, for there may be resided within the parish ; but it is 
 “ none for years. But if the mine manifest that Lord Mansfield treats 
 “ produce profit to the miner, the it as visible, real property, for which 
 
 lord’s shareis certain, annual, and the landlord was assessable wherever 
 ** an annual rent is paid for he resided. Lord Kenyon is sup- 
 “ it constantly. The miner is posed to have doubted this case in 
 “ obliged to pay certain proportions Rex v. Parrot, 5 Term Rep. 593. 
 “ to the owner of the lands; what But he 1 elied upon and approved of 
 “ reason then is there to exempt it in Rex v. St. Agnes, 3 Term Rep. 
 “ these proportionable revenues ? It 480. It was likewise relied upon by 
 “ makes no difference to the adven- Buller, J. Rex v. Carlyon, 3 Term 
 “ t'urer, it does not prejudice nor be- Rep. 385., and at least to a certain 
 “ ncfit him: But us such obligatory extent by Lord Ellenborough, C. J. 
 “ payment is in respect of the lands, Rex tl Bishop of Rochester, iz East, 
 ‘‘ the land owner ought not to re- 353. post. 85. And by the court in 
 “ ceive it clearer or neater than any Rex a;.Baptist Mill Company,post. 86. 
 “ other part of his estate, when he (1) Rex v. St. Agnes, 3 Term 
 4t is at no trouble, expence, or pos- Rep. 480. 
 
 “ sible risk ; therefore we are all of (a) Per Lord Mansfield, Atkins 
 “ opinion that the plaintiff is liable v. Davis, Cald. 337. 
 
 their 
 
Rating incorporeal Hereditaments. 85 
 
 their rateability upon the principle that the persons rated, 
 though not occupiers of the entire land, were to be con¬ 
 sidered as in possession thereof to a certain extent, as 
 being qualified occupiers of particular profits arising 
 immediately therefrom, and as such rateable (1); or to General 
 state the general position as laid down by Eyre, chief P rinc, P Ic ‘ 
 justice, whose judgment is delivered as the opinion of 
 all the judges in the exchequer chamber:— 44 We think 
 44 it may be stated as a general proposition, that the 
 44 immediate profits of lands (some mines excepted) are 
 
 the proper subject of assessment; or to speak more 
 44 correctly, that the person who is in possession of the 
 44 immediate profits of land, may be taxed to the relief 
 44 of the poor in respect of these profits. (2) 
 
 Upon a question whether the lot, toll, and free share Non-resi- 
 of calamine was rateable, it was stated that by indenture 
 reciting that J. L., as lord of the manor of Rowberrow, &c. of cala- 
 was entitled to a lot, toll, or free share of all calamine rate " 
 or lapis calaminaris raised within the manor, in the pro¬ 
 portion of one part in four, and which had been lately 
 received by him at only three parts in twenty in the' 
 enclosed lands, but were not yet ascertained in the un¬ 
 enclosed lands ; the Baptist Mill company had agreed to 
 take to the said lot or free share of the said J. L. : 
 the said J. L. demised to the company 44 all that the 
 44 said part, purpart, lot, and free share of the said J. L. 
 
 44 as lord of the manor, of and in all calamine stone or 
 44 lapis calaminaris raised or gotten, or to be raised or 
 44 gotten in the enclosed lands, or the waters, or the 
 
 (1) Per Eyre, C.J. Lord Bute v. arose upon a paving rate, Lord Al- 
 
 Grindall, ut supra, 80. (i) vanley observed that if a house be 
 
 (2) Eod. Jud. Ibid. The answer hiied for transacting the business of 
 to 18 qu. in the resolutions of the the secretary of state, thougli the 
 judges of assize, 1633, seems to take house be not rateable as a private 
 it for granted,. that rents are rate- house, the owner remains liable, 
 able as pait of the visible ability: Sec also the opinion of Lord Ken- 
 but it does not directly decide the yon, C J. Eckersall v. Briggs, 4Term 
 point. In Halford v. Copeland, 3 Rep. 6. 
 
 Bos. & Pull. 143., when the question 
 
 G 3 
 
 “ other 
 
86 
 
 Rating incorporeal Hereditaments. 
 
 “ other lands within the said manor, or which he had 
 « a right to claim or demand, with liberty to take and 
 c< carry away the sameto hold to the lessees, their 
 \ecutors, &c. for i o years, at the yearly rent of 21 ol. The 
 case further stated that the lessees were not, at the time 
 making the rate, in the occupation of any land or 
 ouilding in the parish of R. unless the lot, toll, and free 
 share is to be considered as land; that they and their 
 agent for collecting this free share reside elsewhere, and 
 run no risk, nor incur any expense whatever. The 
 court were of opinion that as this share was received 
 without risk or contingency, it could not be considered as 
 a mine exempted from taxation by the statute; and 
 that the lord being entitled to a share of the original 
 produce of the soil he was a qualified occupier of the 
 land itself, and would have been rateable as such, if his 
 interest had not been demised; and as this was not a 
 lease of a personal chattel, but of a share of the pro¬ 
 duce of the land before the mineral was actually raised, 
 the lessee was as an occupier of this land to that extent, 
 and rateable as such for the profits of the free share. (1) 
 
 Lessor of But on other hand where a landlord having leased 
 
 lead mines lead mines and other minerals, with liberty to the tenants 
 
 not rateable . J 
 
 for rent. to dig and search for pits under the land, reserving a 
 
 certain annual rent, and also certain proportions of the 
 
 ore which should be raised, he was held not assessable 
 
 for the rent where no ore is raised, and he did not 
 
 reside in the parish, for it is a rate upon the rent of land 
 
 occupied by another. (2) 
 
 The 
 
 l««»or3 of lead 
 mines not rate* 
 ab e for rent as 
 occupier*. 
 
 (1) Rex v. Baptist Mili Company, 
 Trin. 53 Geo. 3., Maule and Selw. 
 MSS. 
 
 (a) The King v. The Bishop of 
 Rochester and others, Trustees un¬ 
 der the will of the late Lord Crewe, 
 12 East, 353. 
 
 The trustees appealed to the ses¬ 
 sions against a poor ra t e made for 
 the parish of Hunstonworth, in the 
 
 county of Durham, in which they 
 being lessors in the lease after men¬ 
 tioned, were rated in the sum of 50I, 
 being one moiety of the certain rent 
 of ieol- reserved by the said lease. 
 The sessions confirmed the rate, sub¬ 
 ject to the opinion of this court on 
 a C 3 se, which set forth the lease un¬ 
 der which the rent was reserved^ 
 This was an indenture of lease, da¬ 
 ted 
 
Rating incorporeal Hereditaments. 
 
 The case of tolls has given rise to further discussion, 
 
 and 
 
 ted the 30th of May, 1805, and 
 made between the Bishop of Ro¬ 
 chester and the other trustees ap¬ 
 pointed by the will of the late Lord 
 Crewe, of the one part, and A. 
 Surtees and others of the other part, 
 •whereby the trustees demised to the 
 lessees “all the mines, veins, &c. 
 
 “ parcels, and wastes of lead ore and 
 “ minerals and fossils,and also all the 
 “ seams of coal then open or discov- 
 “ ered, or which should or might du- 
 “ ring the time therein mentioned 
 “ be opened or discovered, within, 
 
 * under, or upon the township lands 
 “ called Muckton, in the parish of 
 “ Hunstonworth, and within certain 
 “ other lands therein mentioned, to- 
 “ gether with full liberty and autho- 
 “ rity for the lessees to dig and 
 “ search for pits, &c. under any of 
 “ the said lands, for getting all 
 “ the lead ore, minerals, and coals, 
 t( in or upon the said mining 
 “ grounds,” with other powers for 
 the erection of machinery and other 
 buildings on the mining grounds, 
 and for facilitating the working of 
 the mines as therein mentioned: 
 
 “ to hold the demised premises to 
 “ the lessees for the term of ai years, 
 
 “ yielding and paying therefore,year- 
 “ ly during the said term, unto the 
 ,c said lessees, their heirs, &c- for and 
 “ in respect of the said lead ore and 
 “ other minerals, the dearyearly rent 
 “ or sum of iool.” payable half- 
 yearly. There was also reserved, 
 by way of rent, certain proportions 
 of such lead ore as should be gotten 
 from and out of the said mining 
 grounds. There was also a separate 
 rent reserved for the coals, when 
 wrought, and a rent for damage done 
 
 G 
 
 to the ground tenants. The lessees 
 were bound to pay all manner of 
 taxes, rates, assessments,and impo¬ 
 sitions whatsoever, parliamentary or 
 parochial, already or thereafter to 
 be taxed on the demised premises? 
 or on the lead ore, or other mine¬ 
 rals, coals, or fossils gotten there¬ 
 out, or on the lessors or lessees in 
 respect thereof. The case also stat¬ 
 ed, that no coal mines had been 
 wrought within the grounds men¬ 
 tioned in the lease. That the les¬ 
 sees had other lead mines in the 
 
 V 
 
 neighbourhood, but had gotten no 
 ore from under the grounds of the 
 lessors mentioned in the lease, and 
 consequently no proportion of lead 
 ore had been rendered or become 
 due to the lessors. The lessors stood 
 rated in 50I. being a moiety of the 
 certain rent of iool. reserved by the 
 lease, and which was deemed a fair 
 proportion for that part of the mi- 
 ning ground which is in the parish 
 of Hunstonworth, and the lessors, 
 if liable at all, did not object to the 
 fairness of the apportionment. They 
 stand rated in the following form : 
 “ Lord Crewe’s trustees for certain 
 annual rent paid them by Easterby, 
 Hall, and Co. forthe liberty of open¬ 
 ing the mines within their lands, 
 spoil of ground, &c. 50I.—Rate 81 * 
 15s.” None of the lessors reside or 
 have any dwelling house in the pa¬ 
 rish of Hunstonworth. The lessees 
 were not rated to relief of the poor 
 in respect of the demised mines. 
 
 Nolan and Littledale, in support 
 of the rate, relied principally upon 
 the authority of Rowls v. Gell, 
 where the owner (lessee under the 
 crown) of lead mines was rateable 
 4 to 
 
 $7 
 
 Tolls. 
 
Hating incorporeal Hereditaments . 
 
 and to a greater number of determinations; and it seems 
 jt ' now 
 
 to the poor for the profits of lot and 
 cope, which were certain duties paid 
 to him by the adventurers, without 
 a nv risk incurred by himself in the 
 ^dventure: though they admitted 
 he pressure of the recent decision 
 of the court in Williams v. Jones. 
 Before that decision they said that 
 they were prepared to contend that 
 the words “ lands, houses, &c.” in 
 the stat. 43 Eliz c. 2 . the occupiers 
 of which were made rateable to the 
 relief of the poor, were only men¬ 
 tioned in the statute by way of ex¬ 
 ample, and that the legislature meant 
 to subject to the same taxation every 
 species of real property. By the re¬ 
 solutions of the judges of assize in 
 1633, to the question whether shops, 
 salt-pits, profits of a market, &c. be 
 taxable to the poor as well as lands 
 coal mines, &c. expressed in the 
 statute; the answer is, “ all things 
 <c which are real and a yearly reve- 
 “ nue must be taxed to the poor.” 
 In the King v. St. Agnes,the person 
 entitled to toll-tin and farm-due, 
 being certain proportions of the tin 
 raised by the adventurers, was held 
 rateable for such proportions receiv¬ 
 ed by him. It cannot vary the case 
 that this payment is reserved to the 
 lessors by the name of a lent. Rents 
 are only held not taxable where the 
 whole profit of the land is in the 
 first instance taxable in the hands of 
 the tenants or actual occupiers; in 
 which case it would be twice taxed, 
 if the landlord were again taxed for 
 his rent: but the ground of the for¬ 
 mer decisions was, that the adven¬ 
 turers were not taxable for their 
 profits, which were precarious, and 
 therefore the lord or owner, who 
 
 run no risk, was taxable for what he 
 received in respect of his real profit; 
 but the landlord or owner has al¬ 
 ways been considered taxable for 
 any profit of the land received im¬ 
 mediately by him, for which the 
 tenant or actual occupier was not 
 assessable. This principle appears 
 to be recognised by Lord C. J. Eyre 
 in delivering the judgment of the 
 exchequer-chamber in Lord Bute v- 
 Grindall, and by the courts of K. B. 
 and C. P. in Eckersall Briggs, 
 Atkins v. Davis, and Holford i»* 
 Copeland. In all these cases it seems 
 to be taken for granted that rents 
 and other annual profits of land are 
 rateable, unless where the tenant is 
 assessable for the whole annual value 
 of such land in his occupation ; and 
 in none of these cases is any notice 
 taken of the residence of the pro¬ 
 prietor in the parish in which the 
 property lies. Occupier in the sta¬ 
 tute of Eliz. was meant to be used 
 in the popular sense, as possessor, 
 that is, of real property: and inha¬ 
 bitant has always been considered as 
 extending to include the owners of 
 every species of property in the 
 place, whether lying in grant or in 
 livery. The great distinction as to 
 residence lies between real and per¬ 
 sonal property where the owner is 
 rated for his ability generally; which 
 must of course be in the place where 
 he resides; for there only can it be 
 visible; but all local visible proper¬ 
 ty, yielding annual profit, is rateable 
 in its nature; and real property can 
 only be rated in the place where it 
 is situate, and where alone it is visi¬ 
 ble and produces profit. 
 
 Lord 
 
Rating incorporeal Hereditaments. 
 
 now settled by frequent decisions, that though tolls are 
 
 a species 
 
 Lord Ellenborough, C. J. What is 
 there in this case, which is to be the 
 subject matter of rating, but a con¬ 
 tract, by which the landlords get a 
 certain profit for granting toothers 
 a liberty of mining, when perhaps 
 the tenants may never be able to 
 make any profit at all from the land, 
 which may be wholly unproductive? 
 Bayley, J. In Rowls v. Gell, and the 
 King v. St. Agnes, the property for 
 which the lords were rated was not 
 demised. Le Blanc, J. The ar¬ 
 gument goes the length of con¬ 
 tending for the rateability of all 
 rents in the hands of landlords.] 
 It does so where the subject-mat¬ 
 ter is not rateable in the hands of 
 the tenants. 
 
 Dampier.Raine, and Hullock, con¬ 
 tra. The demise is of all mines, 
 &c. within a certain district, with a 
 licence to dig for ore, &c. and a 
 money rent is reserved in respect of 
 that licence, but nothing has yet 
 been produced by the land, which 
 land is rateable, if at all, in the 
 hands of the tenants for its annual 
 produce, so far as the subject matter 
 produced is in itself liable to be as¬ 
 sessed within the construction of 
 the stat. 43 Eliz. But this is an at¬ 
 tempt to rate a money-rent in the 
 hands of the landlords, none of 
 whom reside in the parish, and who 
 not being rateable as inhabitants, 
 can only be rated, if at all, as actual 
 occupiers of land within the parish. 
 Jt must therefore be shewn that the 
 receipt of rents elsewhere is an ac¬ 
 tual occupation of'the land in re¬ 
 spect of which such rent is reserved; 
 which must go the whole length of 
 establishing that landlords are liable 
 
 to be rated, as well as tenants; and 
 this, even though the land produce 
 no annual profit at all in the hands 
 of the tenant. If this were so a 
 landlord would by the same rule be 
 rateable for the profits of his tim¬ 
 ber. It has been long settled that 
 no other mines than coal mines, 
 which are expressly mentioned in 
 the statute, are rateable at all* 
 but by the construction now con¬ 
 tended for, they would be made 
 rateable in the shape of rent in the 
 hands of the landlords by whom 
 they were leased out. The decision 
 in Rowls v. Gell, on which the King 
 v. St. Agnes proceeded, was doubt¬ 
 ed by Lord Kenyon in Rex v. Par¬ 
 rot. But this case is at all events 
 distinguishable; for there the profits 
 of the lord arose immediately from 
 a oertain proportion of the ores 
 brought to the surface without any 
 expence or risk on his part; but here 
 the ores are demised, and the land¬ 
 lords receive a certain money-rent 
 for their interest in the land during 
 the lease, whether any ores be raised 
 or not; which rent is not the sub¬ 
 ject-matter of occupation within the 
 parish. Then there is neither in¬ 
 habitancy nor occupation, in respect 
 of which the landlords can be rated 
 in this parish. 
 
 Lord Ellenborough, C. J. The trus¬ 
 tees can only be rated as inhabitants 
 or as occupiers within the parish. 
 We have so recently put a construc¬ 
 tion upon the word inhabitant in 
 the statute of Eliz. as meaning a re¬ 
 sident within the parish, that it is 
 unnecessary to discuss the matter 
 again ; and the fact of such an inha¬ 
 bitancy is negatived by the case. 
 
 Neither 
 
 
. 
 
 Rating incorporeal Hereditaments . 
 
 a species of rateable property, yet they are only rateable 
 in two cases: i. Where the proprietor resides out of the 
 district for which the rate is made, they must be annexed 
 to something real and substantial, locally situated within 
 the parish or township rated. 2. In all other cases the 
 owner must reside within the limits for which the assess- 
 
 1 
 
 ment is made. (1) 
 
 Neither are they occupiers of the 
 property for which they are rated; 
 so far from it, that they cannot main¬ 
 tain trespass for any injury done to 
 the property which they are suppos¬ 
 ed to occupy : and even if they were 
 the actual occupiers of coal mines, 
 they would not be rateable for them 
 before they were worked and pro¬ 
 ductive. But this is no more than 
 a contract with tenants for the pay¬ 
 ment of a certain rent for ores sup¬ 
 posed to lie under the surface, and if 
 the tenants should open the ground 
 and raise the ore, reserving a certain 
 proportion of ore to the ground 
 landlords. There is no occupation 
 of any thing within the statute. If 
 hereafter the tenants should open 
 the ground and raise ore, the trus¬ 
 tees will then be entitled to certain 
 proportions, and such profits may 
 come within a different rule, as lot 
 and cope; upon which no question 
 at present arises, and therefore it is 
 unnecessary to say any thing. 
 
 Grose, J. was of the same opinion. 
 
 Le Blanc, J. If the trustees were 
 rateable at all, it must be as occu¬ 
 piers of the mines or some propor¬ 
 tion of them: but here they are 
 rated as for a rent eo nomine, for 
 which, if they were rateable, every 
 landlord might by the same rule be 
 rated for his rent. 
 
 Bayley, J. declared himself of the 
 same opinion. 
 
 Order quashed* 
 
 (< 
 
 (1) Rex v. Rebowe, 1. Const, 
 
 142. pi. 177. Cowp. 583. S. C. rateable. 
 
 King Charles granted by patent 
 to Sir Isaac Rebowe, liberty to erect 
 light-houses at Harwich, and to¬ 
 wards the maintenance of them cer¬ 
 tain tolls and duties payable by all 
 ships passing or coming into that 
 harbour; in pursuance of this au¬ 
 thority two light houses were erect¬ 
 ed, which Mr. R. claimed under this 
 grant and subsequent letters patent 
 The duties he received annually 
 amounted to 1400I. but only part 
 thereof was received at the port of 
 Harwich ; the rest at many different 
 ports in the kingdom. The collec¬ 
 tions were casual, as ships pass by or 
 come into theharbour,and therewas 
 no other advantage arising from the 
 light-houses. The defendant occu¬ 
 pied these light*houses, by two men 
 kept in his pay to light and attend 
 the fire and lamps, who had a bed 
 or beds in the larger light-house to 
 lie on alternately. Mr. R. did 
 not reside in the parish, nor was 
 otherwise an occupier there, than as 
 above. He was rated for the light¬ 
 house in the same proportion to the 
 land tax as to the poor rate. The 
 ilf 
 
 ses- 
 
Rating incorporeal Hereditaments. 
 
 9 1 
 
 sessions were of opinion that he 
 ought to be rated and assessed 
 towards the relief of the poor of 
 St. Nicholas parish, in respect of the 
 said light-house, and the duties 
 collected and paid as aforesaid. 
 Lord Mansfield, C. J. They have 
 properly speaking rated the fire, and 
 the profits arising from the house: 
 the Pantheon play-house and other 
 places of public amusement are 
 rated, I suppose, but not for their 
 profits. We will, however, con¬ 
 sider of it; but it seems to me at 
 present that these duties are not 
 rateable. Lord Mansfield. We took 
 some time to consider of the case 
 of Mr Rebowe, and we are all of 
 opinion that he ought not to be 
 rated for the tolls. This property 
 is not in the parish. They have 
 not rated the house but they have 
 rated the tolls. The tolls are not 
 locally situated within the parish, 
 and therefore not rateable there. 
 
 K-m re» : - Rexzi. Inhabitants of Tynemouth, 
 
 Si I a East, 46. 
 
 Jo'us^no* 6 Upon an appeal of Wm. Fowke, 
 
 >stc»bie. tot he quarter sessions of the 
 
 county of Northumberland, against 
 a certain rate for the relief of the 
 poor of the township of Tynemouth 
 in that county, the sessions ordered 
 the rate to be amended by striking 
 out Mr. Fowke’s name; subject to 
 the opinion of this court upon the 
 question, whether Mr. Fowke be 
 rateable for the tolls in respect of 
 the light-house ? The facts were 
 these. Mr. Fowke is entitled to 
 Tynemouth light-hou^e, and to cer¬ 
 tain tolls payable in respect thereof, 
 by virtue of letters patent under the 
 great seal in the 17 C. 2. viz. izd. 
 for every ship belonging to any of 
 the King’s subjects passing by the 
 
 light-house, and belonging or trad¬ 
 ing to the ports of Newcastle 
 and Sunderland, or either of them, 
 or the creeks or the members of the 
 same ; and 3s. for every ship belong¬ 
 ing to any foreigner or stranger 
 coming or passing by the light-house. 
 Mr. Fowke is also entitled to ad¬ 
 ditional light duties under the act 
 of the 42 G. 3. intitled “ an Act 
 for improving the Tynemouth-cas- 
 tle light-house, and for authourizing 
 additional light duties in respect of 
 such improvement.” The altera¬ 
 tions in the light-house have been 
 made in conformity to the act. The 
 light-house is in the township of 
 Tynemouth; and the tolls and du¬ 
 ties arising to Mr. Fowke are pay¬ 
 able upon ships sailing in the Ger¬ 
 man Ocean and receiving the bene¬ 
 fit thereof; and the ships from which 
 the tolls or duties arise never come 
 within the township of Tynemouth, 
 but proceed directly from the main 
 sea into the river Tyne, the whole 
 of which as far as Newcastle is in 
 the port of Newcastle-upon-Tyne, 
 and the parish of St. Nicholas with¬ 
 in the town and county of the 
 town of Newcastle-upon-Tyne: and 
 neither Mr. Fowke nor any of the 
 receivers of the tolls or duties reside 
 in the township of Tynemouth. 
 The tolls or duties paid in respect 
 of ships arriving at and sailing from 
 the port of Newcastle-upon»Tyne> 
 are collected at the custom-house, 
 in the parish of All-Saints, in the 
 town andcounty of Newcastle-upon- 
 Tyne, by Thomas Beck, a person 
 appointed by Mr. Fowke for that 
 purpose: and the tolls or duties paid 
 in respect of ships sailing from other 
 coasting ports are collected at the 
 ports from whence they sail, if they 
 clear at the custom-house there to a 
 
 port 
 
92 
 
 Rex v. 
 mouth. 
 
 Rating incorporeal Hereditaments . 
 
 Tyne- port beyondTynemouth-castlelight; 
 if to a port short of Tynemouth, no 
 toll or duty is payable by them in 
 the first instance; but if they after¬ 
 wards extend their voyage or pas¬ 
 sage to Newcastle, or beyond the 
 light-house, then the toll or duty is 
 paid at the port of their arrival. 
 Same of the tolfs collected at the 
 coasting ports are remitted to Mr. 
 Beck, at Newcastle, and others ac¬ 
 counted for in the first instance to 
 Mr. Fowke. The township of 
 Tynemouth is within the parish of 
 Tynemouth, and maintains its own 
 poor. Mr- Fowke is rated for the 
 tolls, in respect of the light-house, 
 at 750I. The property-tax in re¬ 
 spect of the tolls has been paid to the 
 collectors of that tax in the town¬ 
 ship of Tynemouth. 
 
 Lord Ellenborough, C. J. It is no 
 question now whether this property 
 could be rated in some other way; 
 as if the light-house, whose light is 
 the raeritotious cause of earning the 
 tolls, were in consequence let at a 
 larger rent: but this is a rate sped' 
 ally upon the tolls, and therefore 
 the case is not distinguishable from 
 the King v. Rebowe, which is so 
 immediately in specie and in all its 
 circumstances the same, and has 
 been so long considered and acted 
 upon as law, that it concludes the 
 question. What local piopetty is 
 there within the township on which 
 this rate on the tolls can be levied ? 
 Fhe tolls are not received there ; 
 nor do the ships from which they 
 are collected come within the town¬ 
 ship ; the subject matter of the rate 
 has no locality within this town¬ 
 ship. 
 
 Per Curiam , 
 
 Order of sessions, amend¬ 
 ing the rate, confirmed. 
 
 Rex v. Cardington, Cowp 581. 
 
 This case came before the court 
 
 r&tt nt)lCi 
 
 upon a rule to shew cause why an 
 order of sessions quashing a rate for 
 relief of the poor of the parish of Car¬ 
 dington, should not be quashed as to 
 the assessment upon Ashley Palmer* 
 
 Esq. The case specially stated was 
 that Ashley Palmer, Esq, was seised 
 in fee of the right of navigation of that 
 part of the river Ouse which lies be¬ 
 tween Erith in thecountyof Hunting¬ 
 don, and the town of Bedford, and 
 of all the tolls arising for the carriage 
 of coals and other goods upon that 
 part of the navigation : that he had 
 power to erect sluices and staunches 
 for the better keeping up the water 
 and cairying on the said naviga¬ 
 tion, and that tolls were paid for 
 passing through every sluice, and 
 in a different rate for different 
 sluices : that one sluice was erected 
 in the parish of Cardington, at 
 which the toll was 3d. a chaldron 
 or load weight: that Mr. Palmer 
 did not reside in the parish of Car¬ 
 dington, nor had he any person 
 resident at that sluice to receive the 
 tolls; but that the tolls for that 
 sluice were received at Barford or 
 Eaton : that neither Mr. Palmer, 
 nor any other of the former pro- 
 prietors of that navigation, were 
 assessed to the poor’s rates for their 
 sluices or for the tolls or profits; 
 but they had for many years been 
 assessed to the land tax- Against 
 the rule it was argued, that tolls 
 and other yearly profits being spe¬ 
 cially charged in the land tax acts 
 and not in the act of 43 Eliz. was 
 proof that the parliament did not 
 intend this species of property to 
 be charged to the poor. Besides, as 
 Mr. Palmer did not reside in the 
 parish, nor was even the toll received 
 
 in 
 
! 
 
 Rating Tolls . 
 
 93 
 
 in the parish, if assessable at all it 
 must be assessed where received, 
 and not in the parish of Cardington. 
 And to this purpose was cited the 
 case of Rebowe as directly in point. 
 If any distinction could be made 
 between the two cases, it was that 
 the present was rather stronger 
 than that; because there two per¬ 
 sons were constantly resident in 
 the light-house, the tolls of which 
 were the object of the rate. But 
 here, neither Mr. Palmer, nor any 
 body who could represent him, 
 resided in this parish. In support 
 of the rule, it was contended, that 
 this species of property, though not 
 expressly within the words, was 
 clearly within the meaning of the 
 statute of 43 Eliz. That there 
 could be no difference between 
 these tolls and those of any other 
 description; as the tolls of a market, 
 or the like, which are clearly asses¬ 
 sable to the poor. In the case of 
 Rebowe, inquiry was directed to be 
 made as to the tolls of bridges; 
 when it appeared that Fulham 
 bridge toll$ were taxed at the rate 
 of 500I. a year. Why not assess 
 these tolls as well as them ? As to 
 the objection of their not being 
 received within the parish, they 
 might be received there if Mr. Pal- 
 mer chose; they were not neces¬ 
 sarily payable elsewhere. But the 
 material thing was, that they arose 
 within the parish. The considera¬ 
 tion for which they were paid, was 
 the passing through the sluice 
 within the parish; and if a boat 
 went no farther, the toll was to be 
 equally payable. It was therefore 
 completely due within the parish. 
 The ground of the decision in 
 Rebowe’s case was, that the vessels 
 
 did not come within the parish Rexv. car- 
 
 therefore, the tolls were not due 
 
 there; but here, they arose and 
 
 were due within the parish. The 
 
 court ordered the case to stand over, 
 
 that inquiry might be made as to 
 
 the custom of rating this descrip. 
 
 tion of property in other places. . 
 
 In answer to the inquiries, it was 
 returned on the part of the plaintiff, 
 that out of fourteen sluices, being the 
 whole number erected upon this 
 navigation, one only was rated to 
 the poor; that the river Iyil, near 
 Bury, the Northampton river 
 Larke, Ouse, and Stower were none 
 of them taxed. On behalf of the 
 defendant it was stated, that the. 
 tolls at Marlow, Oxford, Reading* 
 and several others on the river 
 Thames, were all rated to the poor. 
 
 Upon the whole, the court was of 
 opinion, that these tolls were rate ¬ 
 able ; and therefore directed the 
 rule for quashing the order of ses¬ 
 sions to be made absolute, and 
 affirmed the rate. 
 
 Atkins v. Davis, Cald. 315. 
 
 It was an action of trespass, in 
 which the trustees of the London 
 Bridge water works were plaintiffs, 
 and the constables of the ward de¬ 
 fendants. A verdict.was found for 
 the plaintiffs, subject to the court’s 
 opinion upon a case, stating the 
 following circumstances:—The de¬ 
 fendants had taken goods of the 
 company by way of distress, pur¬ 
 suant to an order of the London 
 sessions made under the riot act, 
 upon the inhabitants of that city, 
 to make good the damages recovered 
 against them by actions brought in 
 consequence of the riots in 1780. 
 The company were not incorpo¬ 
 rated, 
 
 Water work., 
 assessed un¬ 
 der 27 Elis, 
 c 13 
 
94 Rating incorporeal Hereditaments . 
 
 Atkins v. Davit, rated, and the defendants had, as The proprietors are rated to the 
 constables for the ward of Bridge land tax for their shares, under 
 
 Within, rated them for, ist, Their 21 G. III. c. 3. s. 57. The plaintiff’s 
 
 offices, with the wheels and works paid their assessment in respect of 
 for raising the water. 2d, A wharf, the wharf, the fire-engine, and 
 3d, A house for their secretrary, secretary’s house ; and the question 
 detached from their works and was, whether they were liable to 
 
 wharfs. 4th, A fire-engine, used the rate for the ist and 5th atti- 
 
 *or laising the water to a proper cles, which constitute their water- 
 . height, also detached. And, 5th, works. 
 
 The pipes, trunks, branches, &c. It was not stated in the case, whe- 
 laid and dispersed in the different ther the poprietors had any property 
 streets, not only in the city of Lon- in the land,under or over which the 
 don, but in the county of Middle- wheels, trunks, and pipes are laid. But 
 sex, and borough of Southwark, for it wa's observed by Lord Mansfield, 
 the conveyance of the water. The C. J. that “ it is most probable, that 
 whole property is within the ward “ though their title was not stated, 
 of Bridge Within, except the works, “ nor any thing concerning it, that 
 with their pipes, trunks, and “ they had only the liberty to lay 
 branches on the Southwark side of “ them.” The point turned upon 
 the river; and except such parts of the meaning of the statute of hue 
 the pipes, trunks, and branches, as and cry, 27EHZ. c 13. s 5. to which 
 are a continuation from the pipes, the riot act, 1 G. I. st. 2. c. 5. s. 6. 
 trunks, and branches within the refers. By 27 Eliz. c. 13. two jus- 
 said ward,and which are from thence tices are to assess the towns, pa- 
 dispersed in the diffeient streets out rishes, villages, and hamlets; and 
 of the said ward, and out of the after such taxation, “ the constables 
 said city of London, hit are all ori - “ shall have power to assess, acccrd- 
 
 ginally derived from, and connected “ ing to their abilities, every inhabitant 
 with the pipes, trunks,and branches “ and dweller towards the payment 
 within the said ward. The profits “ of such assessment as shall be so 
 arising from the water-works con- “ made by the justices.” 
 sist of rents paid by persons sup- The case however was argued in 
 
 plied with water from the works, the court of king’s bench, as if it 
 and amount to 2500I. per annum; had depended upon 43 Eliz. c. 2 
 but of which 276I. 10s. is collected respecting the poor’s rate. The 
 within the ward of Bridge Within, judges of that court were equally 
 the remainder in Southwark, Lon- divided in opinion. Lord Mansfield, 
 don, and Middlesex. All these and Ashhurst J. holding, that these 
 receipts are accounted for by dif- water-works were not rateable ; 
 ferent collectors at the above-men- Willes and Buller, Justices, that 
 tioned office, where the books and they were. 
 
 accounts of the company are kept, It was argued against rating 
 and all business transacted; but the them, ist, That this kind of pro¬ 
 money collected is paid to the trea- perty never had been rated before, 
 surer without the ward. and that usage ought to prevail in 
 
 a doubtful 
 
9 ; 
 
 Rating Water Wot'ks. 
 
 Atkins v. 3 doubtful case. ad, That such 
 Wvl8 ' things only should be rated as 
 yielded a certain profit, and the 
 profit here is uncertain, and depends 
 upon constant labour and expence. 
 3d, No part of the property is rate¬ 
 able; not the pipes and trunks, for 
 they cannot by any cultivation be 
 made to yield a produce (1), and 
 they are mere tools with which the 
 plaintiffs labour; nor the fire-engine, 
 nor the water, nor the arch of the 
 bridge, for the leave to make use 
 of the arch does not give any pro¬ 
 perty in it, and the fire-engine 
 which raises the water, is rated 
 separately. It is therefore a rate 
 'on the profits made merely by the 
 ingenuity of a man’s head, the work 
 and labour of his hands; which, 
 whether done with or without 
 mechanical tools, are not rate¬ 
 able property within the a 7th or 
 43d Eliz. 
 
 The judges, who were of opinion 
 on the other side, that these water¬ 
 works were rateable, stated 1st, 
 That usage of a particular district 
 cannot make law against an act of 
 parliament, ad, These works were 
 not attended with greater risk, 
 expence, or uncertainty than farms 
 or tolls, which are rated; and in 
 assessing houses, the expence of 
 building is never considered, but 
 the house is rated as soon as built (2). 
 3d, That this is not a tax upon the 
 pipes (a mechanical instrument), 
 but upon the water, which, from 
 yielding a profit, becomes a rate¬ 
 able subject. 4th, Being a personal, 
 visible property yielding profit, it 
 
 constitutes part of a man’s “ ability ," 
 
 V m 
 
 for which he is to be rated. 
 
 The judges being equally divided 
 the case was turned into a special 
 verdict: judgment was given for 
 the plaintiff 11 proforma and being 
 removed into the exchequer-cham¬ 
 ber, it was twice argued. The 
 judges there gave no opinion, 
 whether the works were rateable 
 under 43d Eliz., but confined them¬ 
 selves to the 27th Eliz., to which 
 the riot act referred, and which 
 they considered as distinguishable 
 in many particulars from the 43d 
 Eliz. They were of opinion that 
 these w'orks, being property of a 
 permanent, visible, annual, real 
 value, were rateable under the 
 27 Eliz. which directs the constables 
 to assess towards it, according to their 
 abilities, every inhabitant and dweller. 
 The judgment of the court of king’s 
 bench therefore was reversed. 
 
 Rex v Aire and Calder Naviga¬ 
 tion, 2 Term Rep. 660. 
 
 The churchwardens and over¬ 
 seers of Leeds in Yorkshire, by an 
 assessment duly made and allowed, 
 assessed the undertakers of the navi¬ 
 gation of the rivers Aire and 
 Calder for the tolls and duties of 
 the said navigation at Leeds, at and 
 after the rate of ioool. per an¬ 
 num-; and for their lands, wharfs, 
 houses, ware-houses, and other 
 buildings in their own occupation* 
 at and after the rate of 27b per an¬ 
 num. Against the former part of the 
 assessment, the defendants appealed 
 to the sessions, who affirmed the 
 rate, stating the following case for 
 
 the 
 
 Tolls rate- 
 able. 
 
 (1) But see Rex v. Corporation of Bath, 12 East, 609. post. 
 
 (2) Qu. “ Occupied.” 
 
Rating incorporeal Hereditaments . 
 
 Navigation’^* °P* n i° n of this Court.—That 
 the rivers Aire and Calder were 
 made navigable by an act of parlia¬ 
 ment of the io 5c 11 W. III. which 
 act hath been amended by a subse¬ 
 quent act in the 14 Geo. III. c. 96., 
 under both which acts the under¬ 
 takers are entitled to receive certain 
 tolls and. duties therein mentioned, for 
 all goods, &c. carried upon the rivers 
 or cuts therein mentioned, according to 
 the distance -which such goods shall he 
 carried. The whole strength of the 
 navigation from Leeds toWheeland 
 measures twenty-nine miles, of 
 which two thousand seven hundred 
 and ninety yards in length, and no 
 more, lie within the local limits of 
 the township of Leeds. The whole 
 toils and duties arising upon the 
 whole length of the navigation from 
 Leeds to Wheeland or Selby, from 
 the 1st of January 1785, to the 1st 
 of January 1786, amounted to 
 8234]. 6s. zd. exclusive of the tolls 
 and duties arising from the naviga¬ 
 tion from Wakefield to Wheeland 
 and Selby, and the average amount 
 thereof for three years, before the 
 1st January 1786, was 7628I. 7s.— 
 The proportion of t lie tolls arising 
 from the two thousand seven hun¬ 
 dred and ninety yards, part of the 
 length of the navigation, and lying 
 within the local limits of the town¬ 
 ship of Leeds, amounted to 
 4.03I is. iod.perannum, and though 
 upon the face of the assessment 
 the undertakers stand only assessed 
 at and after the rate of ioool. per 
 annum, yet as the houses and build¬ 
 ings within the township of Leeds 
 are by the said assessment rated 
 only at one moiety of the actual 
 rents or real value, the undertakers 
 stand actually assessed at and after 
 the rate of aoool. per annum. The 
 1 of 
 
 undertakers of the navigation had 
 in a year, commencing in July 1785, 
 and ending July 1786, divided the 
 sum of 17,0001. profits; but that 
 sum was made up of many articles 
 besides the tolls and duties. The tolls 
 and duties have been regularly and 
 uniformly rated at the towns of 
 Leeds and Wakefield from the year 
 1713, and at Wakefield from the 
 year 1759, at the annual value of 
 1200I. per annum; the length of 
 the navigation within the local 
 limits of Wakefield being one thou¬ 
 sand one hundred and eighty-nine 
 yards, and the tolls and duties aris¬ 
 ing upon that branch of the navi¬ 
 gation from Wakefield to Selby or 
 Wheeland, being more than that 
 which arises upon the navigation 
 from I.eeds to Selby or Wheeland. 
 The mills, warehouses, and other 
 real property of the undertakers 
 have been rated from time to time 
 in the townships or places where 
 such property lies. But the tolls 
 and duties have not been rated in 
 any of the townships through which 
 the navigation runs, between Leeds 
 and Wheeland, or Selby,or between 
 Wakefield and Wheeland or Selby, 
 except at the towns of Leeds and 
 Wakefield. From tbe year 1792* 
 the undertakers have invariably as¬ 
 sessed for the tolls and duties, to the 
 maintenance of the poor in the 
 town of Leeds, at the value of 
 6col. per annum; and they, or 
 their lessees, have paid the assess¬ 
 ments according to that value. The 
 tolls and duties arising upon the 
 whole length of the navigation, 
 have never in any one year during 
 that space of time, amounted to 
 the annual sum of 8234I. 6s. ad. but 
 in seven years during that time they 
 have been considerably under that 
 
 annual 
 
Canal Tolls . 
 
 97 
 
 annual sum. In the year 1740, 
 upon an appeal to this court, it 
 was ordered that the undertakers 
 should stand assessed at the value 
 of 500I. per annum. In every land- 
 tax act from the year 1709, is con¬ 
 tained a clause, that the undertakers 
 shall not be assessed to the land- 
 tax in any other part, township, or 
 place, through which the navigation 
 runs, but at the towns of Leeds and 
 Wakefield; and the undertakers 
 have been uniformly assessed at 
 Leeds at the same annual sums for 
 which they have been rated to the 
 poor’s rate; and in the above- 
 mentioned act of parliament of the 
 14th of His present Majesty is con¬ 
 tained a clause, which enacts, 
 ** That the rivers, or any of the 
 cuts under the authority of that act 
 shall not be subject or liable to thq, 
 payment of any taxes, rates, or 
 
 which that which lies in Leeds Rex Aire, 
 
 &c.Navigation. 
 
 forms but a small part, the rate m 
 question exceeds its due proportion i 
 but that is not the rule by which 
 these proportions are to be ascer¬ 
 tained. It is well known that the 
 Duke of Bridgewater’s navigation 
 at Manchester extends thirty or 
 forty miles, within three miles of 
 the end of which the grand trunk 
 empties itself, and of course the 
 tonnage in that part of the naviga¬ 
 tion exceeds beyond all comparison 
 the proportion in any other part of 
 it. So that it is most probable that 
 the part of this navigation which 
 comes into the town of Leeds, is of 
 greater value than any other part. 
 
 However I disclaim forming my 
 opinion upon any conjecture of th^ 
 sort;, though it is probably well 
 Founded, it being enough for me to 
 S3y what was said by this court in 
 
 sessments, save and^ except such the case reported in Burrow, that 
 
 taxes, rates, and assessments as had we cannot enter into the inequality 
 been and then were usually charged of the rate, unless it be manifestly 
 and assessed thereon.” unequal upon the face of it. There- 
 
 Lord Kenyorv, Chief Justice. The fore, without entering into any djs- 
 great question in this case is, cussion of more points which are 
 whether thb rate in question on open to it, I am clearly of opinion 
 this property has been assessed in a that this rule ought to be discharged, 
 larg er proportion than it ought? Ashhurst, Justice, concurred. Bui¬ 
 lt is admitted generally, that this ler, Justice, after noticing the other 
 species of property is rateable; it points of the case, said, then it be- 
 also admitted, that the justices at comes necessary to consider those 
 the sessions are the proper judges facts in this case upon which the 
 respecting the equality or inequality law arises; and it is material to ob- 
 of the rate. In the case of Rex v. serve, that it is-not stated that the 
 Brogravethe court said, they could tolls are collected at any other 
 not enter into the inequality of the place than Leeds and Wakefield ; 
 rate, unless it manifestly appeared for if there were any other houses 
 to be unequal, and this rule appears in different parishes at which the 
 to have been laid down with great tolls are collected, it would make a 
 wisdom by the judges who sat in difference ; but on this state of the 
 this court at that time. It has been case, we are bound to take it, that 
 argued, that as the whole extent of all the tolls are collected at these 
 this navigation has many miles, of two places. Taking that fact there- 
 VOL. I. H for© 
 
hating incorporeal He)'edit aments. 
 
 fore as clear, I think the case which 
 has been decided in this court must 
 govern the present. It is material 
 to Consider at what place the tolls 
 became due. I agree that if a per¬ 
 son has property in Yorkshire, and 
 receives the profits of it in London, 
 he shall not be rated for it ih Lon¬ 
 don ; for a toll must be considered 
 to be paid 3t the place where it 
 becomes due. It is impossible to 
 adopt the argument used at the bar, 
 that the toll becomes due at the end 
 ©f every mile for that mile ; for it 
 is an entire contract to carry the 
 goods the whole distance intended, 
 and the hire is payable at the place 
 to which by that contract they are 
 to be carried. The case of Putney 
 Biidge is an illustration of the pre¬ 
 sent ; there the bridge is rated in 
 Putney and Fulham parish at 700I. 
 a year in each, there being gates at 
 each end; formerly there was no gate 
 at Putney end, and then the biidge 
 <vas not assessed in Putney at all. 
 Grose, Justice, said, that this case was 
 abundantly too clear to require any 
 farther comment.-—Rule discharged. 
 
 Rex v. Page, 4 Term, Rep. 543. 
 
 The defendant having been rated 
 towards the relief of the poor of 
 the parish of Newbury, for the tolls 
 of the navigation of the river Ken- 
 net, at 33I. 6s. 8d. after the rate of 
 20 d. in the pound, on the sum of 
 400!., appealed to the Berkshire 
 quarter sessions, where the rate was 
 confirmed, subject to the opinion 
 of this Court, on the following 
 case. By an act 1 Geo. I. c. 24. for 
 making the river Kennet navigable 
 from Reading to Newbury, in the 
 county of Berks, it is enacted,“ that 
 i( in consideration of the great 
 “ charges and expences the under- 
 “ takers would be at, not only in 
 “ making the river navigable, but 
 
 “ also in repairing, &c. the works, 
 “ weirs, locks, &c. it shall be lawful 
 “ for the undertakers, &c. from time 
 “ to time, and at all times thereafter» 
 “ to ask,demand,8cc. for all andevery 
 “ such goods, &c. that should be car - 
 “ ried or conveyed up or down the 
 “ river Kennet , between Reading and 
 “ Newbury, the rates and duties there , 
 “ after mentioned, and that such place 
 “ or places adjoining to the river as 
 “ the undertakers, Sec. should think 
 “ fit, viz. for every ton weight of goods , 
 “ l^fc. that should be carried or con - 
 “ veyed in any boat, barge, or vessel, 
 “ up the river Kennet from Reading to 
 “ Newbury, or down the river from 
 “ Newbury to Reading , any sum not 
 “ exceeding four shillings ; and so 
 4 ‘ proportionably for every greater 
 “ or less weight, or for a less dis- 
 “ tance of place, to or from which 
 “ any goods, &c. should be carried, 
 “ Sec. ; and in case of refusal, 
 “ neglect, or denial of payment on 
 41 demand of the several rates, &c. 
 “ the undertakers,&c. or such other 
 “ persons as they should appoint 
 “ respectively, should and might 
 “ sue for the same by action of 
 “ debt, or upon the case in any 
 “ court of record, or detain or make 
 “ stay of any goods, or any vessel 
 “ carrying such goods, for which the 
 “ rates and prices ought to be paid 
 “ until they were satisfied,” &c. By 
 another act, 7 G. 1., after reciting 
 that doubts had arisen since the 
 passing of the former act, whether 
 the undertakers were by the said 
 act empowered to carry the navi¬ 
 gation further than to the end of 
 the borough of Newbury, they were 
 empowered to make the river navi¬ 
 gable from the wharf or common 
 landing place , “ in, at, or near Read- 
 “ ing, to a place called the Hospital, 
 l( in the borough of Newbury, 
 
 “ under 
 
Canal Tolls ♦ 
 
 u under such authorities,” &c. as 
 were contained in the former act. 
 By another act, 3 G. a., the under¬ 
 takers and proprietors were enabled 
 to “ seize, distrain, or detain any 
 “ boats in case of non-payment 
 “ of the tolls, and to cause the same, 
 u &c. so distrained to be appraised 
 tf and sold.” The length of the 
 navigation from Reading to New¬ 
 bury is eighteen miles and two 
 furlongs; 14a yards of which are 
 in the parish of Newbury, being 
 the termination of the navigation. 
 The navigation passes in its course 
 through part of the respective 
 parishes of Newbury, Thatcham, 
 Midgham, Brimpton, Woolhamp- 
 ton. Pad worth, Aldermaston, 
 Burghfield, Tilchurst, St. Giles, and 
 St. Mary, in Reading. The net 
 amount of the tolls, arising from the 
 tonnage upon the -whole navigation , is of 
 the annual value of ioool. which 
 arises as follows : (viz -) 400!. on the 
 upward bound goods carried up from 
 Reading to Newbury, and landed 
 or unladen in the parish of New¬ 
 bury ; 400I. on goods laden at and 
 carried down from Newbury to 
 Reading; and aool. on goods that 
 pass only part of this navigation, 
 and w hich never come within the 
 parish of Newbury. All the tolls 
 in respect of this navigation are 
 collected at Aldermaston lock, in 
 the parish of Padworth, about the 
 midway between Newbury and 
 Reading, by the agent of F. Page, 
 the appellant, and have been there 
 collected ever since the 5th Febru¬ 
 ary last. By the rate in question, 
 the appellant is rated to the whole 
 amount of the tolls arising from 
 the tonage of goods carried on 
 the navigation from Reading to 
 
 H 
 
 Newbury, and landed at the bason 
 in the parish of Newbury. 
 
 Lord Kenyon, C. J. This case 
 does not admit of much doubt, 
 whether it be considered on grounds 
 of policy, on the words of this act 
 of parliament, or on authorities. 
 By the terms of this act of parlia¬ 
 ment, a toll of 4s. per ton is im¬ 
 posed on all goods carried up the 
 river Kennet from Reading to New¬ 
 bury; that toll of 4s. is one inte*- 
 gral toll for that integral voyage. 
 The case states, that many barges 
 are navigated on this river, some 
 of which perform the whole voyage 
 up to Newbury, some the whole 
 ■voyage down to Reading, and some 
 intermediate voyages: and, in as¬ 
 certaining this rate the sessions ex¬ 
 pressly state, that the rate is im¬ 
 posed on the appellant in respect 
 only of the tolls which are received 
 for goods, carried up the whole 
 navigation from Reading to New¬ 
 bury. The cases which have been 
 cited do not bear upon the present. 
 In the Hampton Wick case, the 
 rate was on a piece of ground ad¬ 
 joining the river, which was used as 
 a towing path. There the court 
 had no difficulty in saying that the 
 occupier ought to be rated for it, 
 because he was in the possession of 
 land yielding an annual profit. In 
 Rex u, Cardington, it was stated 
 that the tolls became due for pass¬ 
 ing through every sluice: that 
 therefore was a local toll, paya¬ 
 ble at the place where the sluice 
 was erected. In the Aire and Cal- 
 der case no integral toll was im¬ 
 posed for the whole navigation, but 
 a proportionable toll according to 
 the distance which each vessel 
 should go, at so much per miles 
 2 there 
 
 99 
 
 Rex v, ftge. 
 
too 
 
 \ . 
 
 Bating incorporeal Hereditaments . 
 
 *ex t'. ?*ge. 
 
 there it was sufficient to say that 
 something was due at the extreme 
 parishes, for which the undertakers 
 were there rateable, without enter¬ 
 ing into the Quantum of the rate. 
 It was not necessary there to deter¬ 
 mine whether any thing were due 
 in the intermediate parishes, be¬ 
 cause the tolls became due at so 
 much per mile ; it will be sufficient 
 to decide that question whenever 
 it arises. But arguments of policy 
 and justice have been now urged ; 
 and it has been said, that the tolls 
 should be considered to be due in 
 each parish in respect of the quan¬ 
 tity of land occupied by the navi¬ 
 gation : but hard would be the lot 
 of the officers who arc to make the 
 rates in these several parishes; 
 'they would have to measure not only 
 the length but the breadth of the 
 navigation in each respective parish, 
 and to have to ascertain with pre¬ 
 cision the exact quantity of land 
 covered with water: those difficul¬ 
 ties would be insuperable; and it 
 would be in vain to think of rat¬ 
 ing at all, if such were the rule. 
 In the case of Putney Bridge, the 
 toll was not apportioned in respect 
 of the quantity of land over which 
 the turnpike road led, but the toil 
 was collected on the spot where it 
 was held rateable. The ground on 
 which my opinion proceeds , is, that 
 where a person has a valuable interest 
 in any parish or township , he ought to 
 contribute towards the relief of the poor 
 in that parish in proportion to such 
 valuable interest . Here the appel¬ 
 lant was rated in respect of those 
 tolls only which became due at 
 Newbury, the place where the na¬ 
 vigation finishes, and where the 
 goods were delivered. But it is 
 said, that they were not in fact 
 
 collected in Newbury, and that 
 they became due where they were 
 collected, the proprietor having 
 power by the act of parliament of 
 appointing the place of collection 
 where he pleases; but certainly 
 there is no justice in that; for the 
 proprietor might appoint a place of 
 collection not in any parish through 
 which the navigation passes. What 
 was said by my brother Buller, in 
 the Hampton Wick case, that the 
 tolls which became due in Hamp¬ 
 ton Wick could not have been 
 rated in London if the corporation 
 had chosen to receive them at 
 Guildhall, is an answer to this part 
 of the argument. And indeed it 
 might as well be contended, that 
 an estate is rateable where the 
 steward thought proper to receive 
 the rents. I am therefore clearly 
 of opinion, that the justices in their 
 sessions have done right in con¬ 
 firming this rate, by which the 
 appellant is assessed only for those 
 tolls which became due at Newbury 
 in respect of the integral voyage 
 from Reading to that place : but I 
 desire that this opinion may not 
 be applied to other cases, where 
 the undertakers of a navigation are 
 entitled to so much per mile for 
 intermediate voyages. 
 
 Ashhurst, Justice. It being stated 
 in the case that the annual value of 
 the tolls for the whole navigation 
 is ioool., 400I. of which arise for 
 the entire voyage ending at New¬ 
 bury, I have no difficulty in saying 
 that the latter tolls become due at 
 Newbury the instant the goods are 
 landed there. Though the pro¬ 
 prietor on this navigation may, for 
 his own convenience, appoint any¬ 
 place on the side of the river to 
 collect the tolls, and though in fact 
 
 they 
 
 Is 
 
Canal Tolls . 
 
 IOf 
 
 they are collected out of the parish this act of parliament has made any Rexr - Pa ee* 
 of Newbury, yet they become due difference in this case. The statute 
 at the place where the goods are gives the proprietor of the navi- 
 landed. The case of Rivers v. gation a toll of 4s. per ton for goods 
 Page, which was cited, I think carried from Reading to Newbury, 
 must have proceeded on some other and gives him the power of col- 
 ground than that stated. I do not lecting those tolls where he pleases, 
 see how the owner of the navigation But that does not alter the contract 
 could distrain for the toll till it be- between the owner of the goods 
 came due; and the toll did not and the proprietor '•of the navi- 
 become due till the voyage was gation : And though according to 
 completed. But here I think that the case of Rivers v. Page, the tolls 
 the appellant should be rated for may be demanded before the voyage 
 400L in Newbury, because tolls to is performed, yet if the voyage be 
 that amount annually become due not afterwards completed, the,owner 
 in that parish. of the goods may recover back the 
 
 Buller, Justice. Two objections tolls in an action for money had and 
 have been made against this rate: received. The clause in this act 
 if either of them be well founded, enabling the proprietor to collect 
 the appellant must succeed. First, the tolls in any place he chooses, 
 that the tolls ought to be rated was introduced for his benefit, but 
 according to the proportion of the still the tolls must be demanded ac- 
 navigation in each parish ; or, se- cording to the rules of law respect- 
 condly, that they should be rated ing the carriage of goods from one 
 at Aldermaston, where they are place to another. This case falls 
 received, for which reason it has directly within the principle of that 
 been argued, that they become due of the Aire and Calder; where it 
 there. But under the express was held, that the tolls ought to be 
 words of this act of parliament the rated in the parish where they be- 
 proprietor may appoint what place come due ; and that in the place of 
 he chooses from time to time; and delivery. In the report of that case 
 therefore it would be very incon- it is stated, that the undertakers 
 venient to fix that as the place in were entitled to tolls, ‘‘according 
 which they should be rated. The “ to the distance which such goods 
 true question here is, as it was in “ should be carried,” that is, the 
 the Aire and CaJder navigation, whole voyage: according to my 
 Where did the tolls become due ? recollection the act of parliament 
 At common law there could be no in that case did not say that the 
 doubt about this question; for if undertakers should be entitled to 
 the goods be not carried to the so much for each mile ; and though 
 place of destination, the captain of an act does mention the rate per 
 the vessel is not entitled to any mile, it is only used as the means 
 freight; for this reason, that he of ascertaining what is due for the 
 has not performed his contract; he whole voyage; for the toll cannot 
 must go to the port of delivery be- be due till the voyage be completed, 
 fore he is entitled to any thing. If Grose, Justice. The short ques- 
 that be so at common law, it be- tion is, whether this property be 
 comes necessary to inquire whether liable to be rated in Newbury i 
 
 H 3 Which 
 
IOX 
 
 Canal tolls 
 rateable 
 where due* 
 
 Rating incorporeal Hereditaments, 
 
 Which depends on this, at what poor of the chapelry or hamlet of Rex v staff**, 
 place are the tolls to be considered Lower Mitton, in the parish of 
 as property? Most clearly at the Kidderminster, in the county of 
 place where they become due; and Worcester, whereby they were 
 I think they become due where rated for “ their basons, towing- 
 the voyage is finished, for till then “ paths, and that part of their c£- 
 the carrier could not recover any “ nal and the locks lying within 
 thing at common law. But it has “ Lower Mitten, and for the tolls 
 been said, that a case was decided “ and duties arising therefrom due 
 in the common pleas, in which it “ at Lower Mitton, on 1500I. at 
 was held that a distress might be “ the sum of 75I.; for their lands, 
 taken for tolls before the voyage is “ wharfs, cranes, weighing ma- 
 perfected : if such were that case “ chines, and timber-yards in their 
 it must have been decided on the “ own possession on ial. at the sum 
 special provision of this act, which “of izs.; and for part of Jones 
 enables the proprietor of this navi- “ land in their own possession on 
 gation to collect the tolls where he “ al. 10s. at the sum of as. 6d.” 
 pleases. But that clause did not On hearing the appeal the sessions 
 mean to say that the tolls did not confirmed the rate on the company 
 become due in law at the place for their lands, wharfs, cranes, 
 where the voyage was completed, weighing machines, and timber- 
 and where the goods were landed yards in their own possession, on 
 and delivered. The observation of ial. at ias. and for part of Jones 
 my brother Buller is decisive of this land also in their possession, on 
 head, that even after a distress the al. 10s. at as. 6d. without opposi- 
 owner of the goods might recover tion. The court also confirmed 
 back the tolls, if the voyage were the rate on the company for their 
 not afterwards performed, and the basons, towing-paths, and that part 
 goods delivered according to the of their canal, and the locks lying 
 contract. Then it was argued, that within Lower Mitton, and for the 
 the appellant should be rated for tolls and duties arising therefrom 
 these tolls at Aldermaston, where due at Lower Mitton on 1500I. at 
 they are collected; but if we should 75I. in manner following, viz. they 
 so determine this case, we should confirmed the rate of 75I. upon the 
 open a door to fraud; for then the said 1500I. so far as respects 350I. 
 proprietor would fix the place of (part of the sum of io.oool. after 
 collection in some parish where the mentioned), payable for and in 
 poor-rates are the lightest, which respect of the lock duties on pass- 
 could not be within the meaning ing through the locks lying within 
 of the act. Order of sessions af- Lower Mitton hereinafter described 
 firmed. without opposition ; and they also 
 
 Rex v. Staffordshire Canal, 8 confirmed the rate of 75I. upon the 
 Term Rep. 340. said ijool. so far as respects the 
 
 The defendants appealed to the residue of the said io.oool. after¬ 
 quarter sessions for the county of mentioned, payable for and in re- 
 Worcester, against a rate made in spect of the tolls and duties due at 
 December last for the relief of the Lower Mitton, hereinafter also de- 
 “ f n scribed. 
 
Canal Tolls • 
 
 scribed, subject to the opinion of this 
 court, as to the last charge, on the 
 following case. The rate was duly 
 allowed and published. By an act 
 of the 6th of Geo. 3. the company 
 are empowered to take rates and 
 duties for tonnage and wharfage 
 for all goods conveyed on the canal 
 not exceeding i£d per mile for 
 every ton, and so in proportion for 
 any greater or less quantity than a 
 a ton : which rates and duties are 
 directed by the act to be paid to 
 such persons, at such places near 
 the canal, in such manner and un¬ 
 der such regulations, as the com¬ 
 pany shall appoint; with a power 
 of distress in case of non-payment. 
 It is further enacted, that for the 
 more easy collecting of the rates 
 and duties, the master, &c. of every 
 vessel navigating on the canal shall 
 give a just account in writing, sign¬ 
 ed by him, to the collectors of the 
 tonnage or duties, at the places 
 where they attend for that pur¬ 
 pose, of the quantities of goods in 
 3iich vessel, from whence brought, 
 and where they intend to land the 
 same; and if such goods be liable 
 to pay different tolls, then such 
 master, See. shall specify the quan¬ 
 tities liable to the payment of each 
 toll; and in case they neglect or. 
 refuse to give such account, or give 
 a false account, or deliver any part 
 of their loading at any other place 
 than is mentioned in that account, 
 they are to forfeit to the company 
 1 os. for every ton of goods so falsely 
 accounted for, &c. over and above 
 the respective rates and duties pay¬ 
 able for the same, and recoverable 
 in the same .manner, &c. By ano¬ 
 ther act of the 10th Geo. 3. the 
 company are authorised to take 
 tonnage proportionably for any 
 
 less distance than a mile, which 
 any commodities shall be conveyed 
 on the canal, to be collected* re¬ 
 covered, and applied as the former 
 tonnage rates; and the vessels, &c. 
 passing through the two Jocks 
 erected between the river Severn 
 and the canal bason, are to pay #■ 
 toll or lock due at the rate of id. 
 per ton, in lieu of the tonnage of 
 i£d. per mile fixed by the said re¬ 
 cited act; and the said tolls or 
 lock dues are to be collected, re¬ 
 covered, and applied as before di¬ 
 rected, &e. By the same act of 
 the 10th Geo. 3. it is enacted that 
 the shares of the company, which 
 by the former act the proprietors 
 held in the nature of real estates, 
 shall be deemed personal estates. 
 See. The lock dues received by the 
 company in the last year for boats 
 and other vessels passing through 
 the said two locks, which locks are 
 locally situated in the hamlet of 
 Lower Mitton, amounted to 350I. 
 The tonnage of the goods brought 
 in boats down the canal and landed 
 at Stourport, which is in the ham¬ 
 let of Lower Mitton, and the ter¬ 
 mination of the canal, or tranship¬ 
 ped therefrom on board canal boats 
 to Severn barges, amounted in the 
 year 1798 to 9650I. making toge¬ 
 ther with the said 350I. the sum of 
 io,oool. which sum of 9650I. arose 
 in the following manner, viz. [Here 
 the case set forth the different sums 
 received for the tonnage of goods 
 taken in at different places on the 
 canal, shewing how much the ton¬ 
 nage amounted to in each parish, 
 reckoning by the number of miles 
 that the canal passed in the several 
 parishes; according to which mode of 
 calculation, by the mile, a very small 
 part of the toll arose in Lower Mit~ 
 
 ton.J 
 
 H 4 
 
104 
 
 Rexv. Stafford* 
 stiire canal. 
 
 Bating incorporeal Hereditaments\ 
 
 ton.] But the said sum of 9650I. was 
 not received by the companyat Lower 
 Mitton, but at the several places 
 where the goods were shipped. The 
 expences of repairing the bason 
 and that part of the canal which 
 lies within the hamlet amount an¬ 
 nually to 540I. other parts of the 
 canal and basons lying out of the 
 hamlet are also repaired at a great 
 annual expence; and the repair of 
 every part contributes to the profits 
 and use of the whole canal. The 
 dividends per share of each pro¬ 
 prietor of the ^anal for the year 
 1798 amounted to 3a!. clear of all 
 expences and deductions. The 
 agents of the company on receiving 
 accounts in writing of the quanti¬ 
 ties of goods which are in each 
 vessel, and the places where the 
 same are intended to be landed, in 
 the manner required by the first 
 act, deliver permits to the master, 
 &c. of every such vessel, &c. to 
 navigate the same accordingly upon 
 the canal. The company are not 
 carriers upon the canal, nor the 
 owners of any vessels employed 
 thereon; and the payment of the 
 tolls on goods carried on the canal 
 is by the direction of the company 
 made to their agents at the places 
 where such goods are laden or ship¬ 
 ped, and the company consider 
 such places as the places at which 
 they become due under the act. The 
 land used in the canal, the towing- 
 paths and basons lying in the ham¬ 
 let of Lower Mitton, measure 
 8 a. % r. 13 p.; and the land used in 
 the whole of the canal towing-paths, 
 and basons measure 370 a a r. 7^ p. 
 The length of the whole canal is 
 46 miles and an half, amounting to 
 81,840 yards; 1367 yards of which, 
 including the length of the bason, 
 
 and measuring to the Severn lock, 
 being the termination of the canal> 
 lie in the hamlet of Lower Mitton, 
 so that that part of the canal which 
 lies within the hamlet bears to the 
 whole length of the canal the pro¬ 
 portion of about one to sixty. 
 
 Lord Kenyon, C. J. 1 consider that 
 this case is brought forward to give 
 us an opportunity of reviewing the 
 opinions we delivered in the former 
 cases that have been alluded tor 
 but on re-consideration, I do not see 
 any reason to induce me ta change 
 the opinion I then gave. In the 
 first of those, R. v. The Under¬ 
 takers of the Aire and Calder Na¬ 
 vigation, which was decided soon 
 after I came into this court, though 
 it differs from the present case, 
 some rules were established appli¬ 
 cable to this case. But I cannot 
 distinguish the other case, R. v. 
 Page, from the present in principle 
 and in substance, though there are 
 some nice distinctions between them. 
 And if the rules there laid down 
 had occasioned any great incon¬ 
 venience, the parties interested have 
 had in the interval of several years 
 many opportunities to apply to the 
 legislature for a remedy ; but no ap¬ 
 plication of that kind having been 
 made, I presume that no inconve¬ 
 nience has resulted from those deter¬ 
 minations. This does not appear to 
 be a contest between the parishes 
 through which the canal passes and 
 the company of proprietors, but the 
 company are struggling against the 
 rate altogether. To this company 
 indeed, as well as to others of the 
 same kind, the public are much in¬ 
 debted for their undertakings, but 
 they ought to contribute to the relier 
 of the poor, in common with the 
 owners of all other species of pro¬ 
 perty. 
 
Canal Tolls . 
 
 perty, in proportion to the profits 
 that they acquire. As the company 
 have objected to the present mode 
 of rating, I am anxious to know 
 what other mode they would sub¬ 
 stitute fot it: on this point, how¬ 
 ever, their counsel have left me in 
 great doubt. They gave me the 
 choice of two modes; they wish the 
 company either to be rated for the 
 whole in the parish where the tolls 
 are received, or for the different 
 parts inthedifferentparishesthrongh 
 which the canal passes, in propor¬ 
 tion to the number of miles in each 
 parish, but they have not named 
 that mode on which they choose to 
 rely. 1 rather think that they would 
 not be satisfied witft the first of 
 those methods ; because after re¬ 
 ceiving the tolls in one parish for 
 the whole voyage, it is too much to 
 say that the company should retain 
 them in the event of the owners of 
 vessels not being able to go the 
 whole voyage; either on account 
 of the locks being out of repair, the 
 banks giving way, or any other 
 accident of that kind. It is not 
 therefore the most convenient place 
 to rate the tolls where they are col¬ 
 lected. Then it is said that the 
 other mode of rating should be 
 adopted, because the land over 
 which the canal passes was before 
 rateable to the poor in respect of 
 its produce. But insuperable diffi¬ 
 culties occur to this mode. It is 
 admitted, that all property should 
 be rated to the poor according to its 
 meliorated state: but on account of 
 the difference of the expence at¬ 
 tending the cutting of a canal in 
 flat and hilly countries, it is almost 
 impossible to ascertain the precise 
 degree in which the property is 
 meliorated in each particular parish. 
 
 The bar are already in possession of 
 the reasons which we gave in the 
 case of R. if. Page, and therefore it 
 is not necessary to repeat them. It 
 seems to me, after reviewing the 
 whole of the subject, and consider¬ 
 ing which is the most eligible mode 
 of rating the property in question, 
 that the mode adopted below is 
 that which approaches nearest to 
 justice. It is sufficient therefore to 
 say, that I continue to think that 
 the case of R. v. Page was rightly 
 decided, and as 1 cannot distinguish 
 this case from that in principle, the 
 present rate must be confirmed. 
 
 Grose, Justice. The great object in 
 this case is to find out the true prin¬ 
 ciple according to which the tolls 
 ought to be rated. This very point 
 was much considered in the case of 
 R. v. Page, where, after the best 
 consideration that I could give to 
 the subject, it appeared to me that 
 tolls of this kind should be rated 
 where they become due : and I can¬ 
 not, on re-consideration, discover 
 any other mode of rating less ex¬ 
 ceptionable than that. That mode 
 may possibly be liable to some ob¬ 
 jection, and so is every other mode 
 that has been suggested: but that 
 mode appears to be most consistent 
 with the justice of the case, and to 
 be attended with fewer difficulties 
 and objections than any other, and 
 it is not inconsistent with any clause 
 in the act of parliament by which 
 the tolls are imposed. The Lord 
 Chief Justice has stated his objec¬ 
 tions to both the modes of rating 
 proposed by the company; and I en¬ 
 tirely agree wiili his lordshipon those 
 points. In answer to one argument 
 at the bar, that the money was not 
 paid for the tonnage but for permis¬ 
 sion to pass on the navigation, it is 
 
 sufficient 
 
 i af 
 
 
 105 
 
 Rex v. Staftor<- 
 ebire caaal. 
 
Rating incorporeal Hereditaments . 
 
 Stafford- sufficient to refer to the act of par¬ 
 liament, which empowers the com¬ 
 pany to take tonnage for all goods 
 conveyed on the canal, such rates 
 and duties. &c. not exceeding i^d. 
 per mile for every ton ; the rates 
 therefore, are not payable until the 
 goods are conveyed, for until they 
 are conveyed it is impossible to say 
 how much will become due. For 
 though the money may be paid in 
 advance for the convenience of the 
 company in many instances, it must 
 be returned if the voyage cannot be 
 completed, because until the voyage 
 is completed no money becomes due 
 under the act of parliament. On 
 the whole therefore, I think that 
 the mode of rating adopted in the 
 case of R. v. Page, which seems less 
 objectionable than any other, ought 
 to be adopted in the present case. 
 
 Lawrence, Justice. The company, 
 who object to the present mode of 
 rating, say that they should be rated 
 for the tolls either in the parish 
 where they are collected, or in the 
 several parishes through which the 
 canal passes, according to the dis¬ 
 tance in each. Their counsel would 
 not absolutely choose the first; they 
 seemed rather to prefer the latter 
 mode. But considering that this is 
 a rate on tolls, the proprietors of 
 the tolls must be rated either in the 
 parish where the tolls become due, 
 or in that where they are received ; 
 but I think they cannot be rated in 
 the parish where they are actually 
 collected, because many cases may 
 be put in which the tolls, though 
 received, must be returned to the 
 owners of the goods. Therefore it 
 seems to me that the tolls should be 
 rated in the parish where they be¬ 
 come due, that is, where the voyage 
 is complete; and what was said by 
 
 Mr. J. Buller, in giving his opinion 
 in R. v Page, comparing this to the 
 case of a carrier, deserves great 
 weight. But it has been argued 
 that this resembles the case of R.v . 
 Cardington, where the tolls became 
 due on passing the sluice; but it 
 must be remembered that there the 
 toll was paid for the use of the lock; 
 and if the owner of the vessel after 
 paying the toll, had been prevented 
 pursuing his voyage, he could never 
 have recovered back his money, be¬ 
 cause he had the use of the lock. 
 Nor is this like the case of a turn¬ 
 pike ; for there the tolls are paid for 
 the benefit of the public, and not 
 for the use of any individuals, and 
 those tolls are not the subject of 
 taxation, within the 43 Eliz.; there 
 also the money is paid for the pri¬ 
 vilege of passing through the gate, 
 and the party having once paid it, 
 cannot under any circumstance, re¬ 
 cover it back again. It seems to me 
 therefore, that this question was 
 very rightly settled in R. v. Page, 
 which case cannot fairly be distin¬ 
 guished from the present. 
 
 Le Blanc, Justice. This is a rate on 
 tolls and not on land. It is admitted 
 that tolls, as such, are rateable pro¬ 
 perty, and that such property is rate¬ 
 able in the parish where it rises; now 
 it was decided in R.z/.Cardington and 
 other cases, that by this expression, 
 where it arises, we are not to under¬ 
 stand the parish where the tolls are 
 actually received, but the parish 
 where they become due, The ques¬ 
 tion then, in this case, is, where do 
 these tolls become due or payable ? 
 
 It has been said that the tolls are 
 not paid to the company in respect 
 of a contract for the carriage of 
 goods, but for the privilege or li¬ 
 berty of carrying goods on their na¬ 
 vigation ; 
 
Canal Tolls . 
 
 to 7 
 
 fontshire 
 unal. 
 
 , vlgation: tat in each instance, it that that decision is not consistent 
 
 is an entire contract to pay so much with the rules of law or pubhc po- 
 for the liberty of carrying goods for licy, 1 am-of opinion that t e or or 
 a certain space along the canal, and of sessions must be confirmed, 
 until the contract on the part of 
 the company, giving the privilege 
 of carrying the goods on their na¬ 
 vigation, is performed, nothing be¬ 
 comes due to them. If the contract 
 
 Per curiam. 
 
 Order of Sessions confirmed. 
 
 The Kiner v. John Nicholson, Non resident 
 
 ° J not rateable foir 
 
 12 East, 330. Ferry tolls. 
 
 John Nicholson appealed to the 
 
 be for sending goods the whole sessions against a rate made for the 
 length of the navigation, the con- relief of the poor of the township 
 
 tract is not performed on their part, of Monkwearmouth-shore, in the 
 
 and nothing becomes due to them county of Durham, whereby, as 
 for tolls until the goods are convey- lessee of an ancient ferry from and 
 ed to Stourport: if the contract be between Sunderland, near the sea, 
 for the privilege of conveying goods in the said county, and Monkwear- 
 an intermediate voyage, to some mouth-shore,hewas rated for the tolls 
 place short of the whole distance, of the same. 1 he sessions confirmed 
 the tolls do not become due until the rate, subject to the opinion of 
 such shorter voyage is performed, this court on the following case. 
 
 But this very question has been al- The appellant Nicholson is an 
 ready determined in the case so fre- inhabitant of and lives in Sunder- 
 quently alluded to, R.-y. Page; and land, which town lies close to the 
 
 unless the court felt that there were sea, at the mouth of the river 
 
 some strong objections to the mode Wear, which divides the parish of 
 
 of rating adopted in that case, that Sunderland from the township of 
 decision ought to govern the pre- Monkwearmouth - shore, on the 
 sent case. Now no mode of rating north side of the river, maintaining 
 these tolls more consistent with each their own poor. There is an 
 justice or with policy than the ancient ferry for horses, goods, and 
 rule there adopted has been point- passengers, which crosses the river 
 ed out. The counsel for this com- from Sunderland to Monkwear- 
 pany have indeed contended that mouth-shore, and from Monkwear- 
 this case is distinguishable from mouth-shore to Sunderland. This 
 that in this respect, that there ferryuntil 1795 was leased by the Et- 
 the toll was limited at a gross sum, rick family under the bishop of Dur- 
 (4S. per ton) for the whole voyage, ham, when it was purchased by, and 
 and so proportionably for a greater now belongs to the commissioners 
 or less distance, whereas here the of Wearmouth bridge; and the ferry 
 toll is i^d. per ton, per mile: but and the tolls thereof are at present 
 there is not in reason any distinc let by them on a lease for three 
 tion between the two cases on that years from Martinmas 1808 to the 
 
 account; in the one case as well as appellant, at the yearly rent of 
 
 in the other, the rate of tonnage is 35 ° 1 . There are two lar S e boats ’ 
 calculated at so much per mile. Not which keep plying all the day to 
 being able, therefore, to distinguish and from Sunderland and Monk- 
 that case from the present, nor see- wearmouth-shore, and which are 
 i„g a ny ground on which 1 can say towed by two in each boat, and the 
 
10b Rating incorporeal Hereditaments ,. 
 
 *on . v - Nlcho! ' fare or tol paid for a person passing and a dwelling-house 3s. for one 
 m the ferry is a halfpenny each year’s passage of the lessee’s tenants 
 
 way; and of late years for conve- or inhabitants of each cottage or 
 nience it has been accustomed to house; and the ferry was to land 
 collect the money of the passengers from thenceforth in no other place 
 as they enter the boat on either in Monkwearmouth-shore but the 
 side of the river instead of when two places set out by the arbitra- 
 they go out, as it used to be done tors. The ferry dues settled and 
 formerly; and one boat puts off ascertained by that award for the 
 fiom one sided the water when passage in the ferry-boats of the 
 they see the other put off from the lessees, tenants, and the inhabitants 
 opposite side. There is a small of the cottages and dwelling-houses 
 boat also goes to and from Sunder- situate in Monkwearmouth-shore, 
 land and Monkwearmouth-shore have been paid ever since to the" 
 dining the night; and the inhabi- tenant or occupier of the ferry for 
 tants ot Monkwearmouth-shore, the time, and are reserved and con- 
 who are customed as after-mention- firmed to the same lessees, tenants, 
 ed, pay the same toll or fare of a and inhabitants, in the act passed 
 
 P « ? '• . _ for the erection of Wearmouth 
 
 do^if they go over in this night bridge in 1792, and amount to from 
 boat. The respective boats when 80I. to 100I. a year. The ferry has 
 not used have always been locked always until the year 1802, when 
 up on the Sunderland side of the it was let to one Thomas Wandless, 
 water, close to the place where the who lived in Monkwearmouth- 
 passengets get in on that side. Pre- shore, been let to persons liv- 
 vious to the year 1710, a dispute ing in Sunderland, and been rated 
 having arisen between Anthony to the poor of Sunderland for the 
 Ettrick, Fsq. the then lessee under whole of the tolls or ferry dues * 
 the bishop of this ferry, and Sir and it has at different times been 
 Wm. Williamson, Bart, respecting also rated to the poor of Monk- 
 the ferry landings on his estate in wearmouth-shore; but nothing was 
 the township of Monkwearmouth- ever paid to that township until 
 shore and the ferry dues to be paid Wandless took the ferry; when the 
 by his tenants in Monkwearmouth- parish of Sunderland having raised 
 shore for passing the ferry, it was his rate, in Consequence of his hav- 
 refeired to arbitration: and by an ing given an additional rent, he ob- 
 award dated 2jth March, 1710, jected to pay, on the ground that 
 two places were set out by the part of the tolls of the ferry arose 
 arbitrators for the ferry landings and became due in the township 
 in Monkwearmouth-shore; and the of Monkwearmouth-shore,and were 
 one of them, which is called the liable to be rated to-that township- 
 high landing in the award, is the and the township of Monkwear- 
 place where the ferry now lands, mouth-shore having rated him for 
 
 and has for a great many years past, a part, he appealed against the 
 And the ferry dues to be paid by his Sunderland rate, on the ground be- 
 lessees and tenants in Monkwear- fore mentioned, to the s 8 ssions at 
 mouth-shore were also fixed by the Durham in July 1805, when the 
 arbitrators; naraeiv* cottage as. 6d. point was abandoned by’the respon¬ 
 dents, 
 
Rex v, 
 son. 
 
 Tolls of a Ferry. 
 
 dents, and Wandless’s rate to Sun¬ 
 derland was amended, and reduced 
 to half of the tolls of the ferry; and 
 the ferry has since been continued 
 to be rated to Monkwearrriouth- 
 shore for one half of the tolls ot 
 ferry dues, including one half of 
 the custom money, and for the 
 other half thereof, including the 
 remaining half of the custom money 
 to Sunderland. The number of pas- 
 sengers from Sunderland to IVlonk- 
 wearmouth-shore are about the 
 same as from Monkwearmouth- 
 shore to Sunderland. The place 
 where the ferry lands in Monk- 
 wearmouth-shore is of little or no 
 value of itself, in case it was not 
 used for the ferry landing. No 
 question arose in this case as to the 
 quantum, for it was admitted that 
 the appellant was properly rated in 
 the township of Monkwearmouth- 
 shore as to quantum, in case he is 
 rateable there at all for any part of 
 the tolls or fees arising or received 
 from or in respect of the ferry¬ 
 boats. The sessions being of opi¬ 
 nion that he was rateable for a 
 moiety of all such tolls or fares, in¬ 
 cluding one moiety of the custom 
 money aforesaid, confirmed the 
 rate. 
 
 This case was now argued by 
 Holroyd, in support of the order of 
 sessions establishing the rateability 
 of the appellant for the profits of 
 the ferry, and by Hullock against 
 it: and as the case of Williams v. 
 Jones, next reported, which was 
 argued in the last Term and stood 
 over for consideration till the argu¬ 
 ment in this case had been heard, 
 involved, the same general question, 
 I have collected together in this 
 place all the leading arguments and 
 authorities adduced by the respec¬ 
 
 tive counsel for and against the 
 rateability of this species of pro¬ 
 perty. ' * 
 
 In affirmance of the rate it was 
 urged that the ferry was real pro¬ 
 perty ; an incorporeal heredita¬ 
 ment within the parish ; local in 
 its very nature; and having locality 
 assigned to it by law: demandable 
 in a praecipe quod reddat, in count¬ 
 ing upon which it must be claimed 
 as situated in such a parish, &c. an 
 assize clearly lies for it, the owner 
 may prescribe for it, and have seisin 
 in fee of it, considered as a franchise, 
 it is a real franchise, the exercise of 
 which is necessarily confined to a 
 certain place. One of the landing 
 places is within the township, to 
 which the defendant is rated, and a 
 moiety of the tolls becomes due and 
 is collected there. There is no dis¬ 
 tinction in ptinciple between the 
 tolls of a ferry and those of a market 
 or canal: the former were held rate¬ 
 able in the case of the corporation of 
 Wickham (i) confirmed in Atkins v. 
 Davis (a),and in the Staffordshire and 
 Worcestershire canal case (3), the 
 proprietors who were empowered by 
 act of parliament to take so much 
 per mile per ton, for all goods car¬ 
 ried along the canal, were not only 
 held rateable for their lands, wharfs, 
 &c. and other real property in the 
 occupation of their servants, but 
 also for the tolls which became due 
 in the several parishes on the line 
 of the canal where the different 
 voyages ended; though for their 
 convenience the company were 
 authorised to collect the tolls where 
 they pleased, and did in fact col¬ 
 lect them in other parishes. Part 
 of the rate there was specifically on 
 the tolls and duties arising from 
 the navigation on the canal, due 
 
 (1) Ante. 
 
 (z) Ante. 
 
 (3) Ante. 
 
 at 
 
iio 
 
 Rating incorporeal Hereditaments . 
 
 Rex. d. Nichoi- at Lower Mitton ; the case was 
 
 argued as a rate on tolls contradis¬ 
 tinguished from land, &c., and 
 decided on the ground of the tolls, 
 as such, being rateable in the parish 
 where they became due, as arising 
 and becoming visible property 
 there. The like decision upon the 
 same principle had before been 
 made in the King v. Page, [Lord 
 Ellenborough C.J. In those cases 
 the question did not turn so much 
 on the rateability of the property, 
 considered merely as tolls, as on 
 the proper place where they were 
 to be rated; for in all these cases 
 the tolls were in respect of the 
 land and soil of the canal which 
 was vested in the proprietors. In 
 general the rate has been imposed 
 on some real property in the parish 
 out of which the tolls arose as on 
 the sluice, in the King v. Carding- 
 ton, and in the Salter’s Load sluice 
 case. Bailey J. all the cases of tolls 
 held rateable have been where the 
 tolls arose out of the use of land.] 
 Yet in Atkins v. Davis, BullerJ., 
 speaking of the case of the King v. 
 Cardington, said, that Palmer, 
 who was there rated in respect of 
 the tolls, had no property either 
 in the soil or in the water, but 
 had merely a power of erecting 
 sluices and taking tolls. Neither 
 was the soil of the Aire and Calder 
 rivers vested in the undertakers of 
 the navigation, yet in their case 
 the tolls and duties of the naviga¬ 
 tion, which they were authorised 
 to collect by act ©f parliament, 
 were held rateable, (apart from the 
 lands, wharfs, &c. in their own 
 occupation,) in the two parishes 
 where the collection was made in 
 respect of the whole line of the 
 navigation, which ran through 
 
 several intervening parishes. So 
 in the case of the Leeds and Liver¬ 
 pool canal, the company were rated 
 specifically for their tolls of the 
 navigation as well as for their 
 warehouse and land. [Lord Ellen¬ 
 borough C.J. The undertakers of 
 the Aire and Calder navigation had 
 I believe real property in the 
 parishes where the tolls were col¬ 
 lected ; and the rate was upon the 
 tolls conjoined with that property, 
 which property was rendered so 
 much more productive by reason 
 of the tolls collected there. So in 
 the Leeds and Liverpool case it 
 was a conjunctive rating. The 
 tolls were held rateable for the 
 canal within the parish. But is 
 there any case of rating tolls where 
 the owners had no land or visible 
 property in the parish ?] In every 
 case where tolls have been rated as 
 well as land, the order of sessions 
 confirming both conjunctively ought 
 to have been quashed instead of 
 being confirmed, if the court had 
 not considered that both were 
 rateable. [Lord Ellenborough C.J. 
 The great difficulty is to bring 
 the case within the words of the 
 statute 43Eliz. c. 2. conferring the 
 authority. The party rated must 
 be either an inhabitant of the 
 parish, or he must be an occupier 
 of one or other of the descriptions 
 of property mentioned in the sta¬ 
 tute: and within which does this 
 appellant come? The case states 
 him to be in fact an inhabitant of 
 another place.] He may be con¬ 
 sidered as an occupier of land in 
 respect of the use which he has of 
 the water which covers the land, 
 and is part of the realty. The 
 word lands is used in the statute 
 as the nomen generalissimum for 
 
 every 
 
 I 
 
111 
 
 t 
 
 lolls qf a Ferry . 
 
 every species of real property, in- ship; and the only question which 
 corporeal as well as corporeal: *' all can be made is, whether he were 
 “ lands, and all real property, are an occupier of lands. [Lord Ellen- 
 ** rateable to the poor,’* said Mans- borough, C. J. asked whether the 
 field in Rex v. Gardner, At 3ll counsel were aware of any case 
 events he may be considered as an where the word inhabitant in the 
 inhabitant of the township within statute of Eliz. had been held to 
 Lord Coke’s extended signification mean any other than resident: and 
 of that word in his construction of was answered that there was no 
 the statute on bridges, as compre- such case : that the question was 
 hending all who have lands and raised in the Liverpool and Hull 
 tenements in possession, though cases. In every case where a rate 
 living in a foreign country. In like in respect of personal property has 
 manner the stat. 43 Eliz. may be been established, the party rated 
 taken to include every person oc- has appeared to be an actual in- 
 cupying any species of property, or habitant of the place. It is argued 
 exercising any local franchise pro- that the word lands includes all real 
 ducing profit to him within the property, and that a ferry is real 
 township; for this forms part of property; but no authority has 
 his ability there. A lessee of tithes, been cited for that position: no 
 though he do not reside within the instance has been 1 shewn of ah 
 palish, is certainly rateable. This ejectment brought for a ferry, or of 
 is not the case of a mere easement, a praecipe quod reddat lying for it. 
 but the party has an interest in the But however that may be, that is 
 place. The tolls of a lighthouse not the criterion for its rateability 
 were held in a late case not to be The rule was laid down in the King 
 rateable, because neither the ships v. Andover, and has been long es- 
 in respect of which the tolls became tablished, and lately recognized in 
 due were within the parish, nor Rex v. St. John Maddermarket, in 
 were the tolls received there : that Norwich, that a person is only rate- 
 case therefore does not conclude able for his local visible property 
 the present. within the parish: the property 
 
 Against the rateability of tolls, must be visible and tangible to 
 it was contended that the question make it the subject of occupation, 
 was one of strict construction upon When, therefore, this is argued to 
 the words of the stat. 43 Eliz. c. z. be an incorporeal hereditament, it 
 by which alone the power of rating does not follow, nor is there any 
 to the relief of the poor was given, authority to shew, that a person is 
 The statute directs the necessary rateable for an incorporeal heredi- 
 sums to be gathered out of the tament in the place where he does 
 parish according to its ability by not reside. The specific mention 
 taxation of every inhabitant, &c. of tithes in the statute bears against 
 «nd of every occupier of lands, &c. the argument, and shews that 
 and no man can be rated except as without such express mention the 
 an inhabitant or occupier. Here owner would not have been rate- 
 the case negatives that the appellant able for that species of property 
 was an inhabitant of this town- under the general word lands; and 
 
 ex- 
 
 ✓ 
 
 N 
 
 . Nichol* 
 
112 
 
 Rex v. 
 son* 
 
 Rating incorporeal Hereditaments. 
 
 Nichei- expressio unius est exclusio alterius. 
 This is a rate on the tolls of a 
 ferry, in other words, upon the 
 profits made by the manual labour 
 of working the ferry boats, that is, 
 upon the freight of the boats; and 
 that too in a place where the owner 
 does not reside, and where the boats 
 are not kept. And though if he 
 were an inhabitant of the township 
 the ferry boats of which such pro¬ 
 fit was made might furnish a local 
 visible criterion of the party’s abi¬ 
 lity, yet in no other character could 
 he be rated for such profit. The 
 right of convey ing persons from one 
 side of the highway to the other is 
 a mere franchise or privilege : the 
 right of landing on the soil of the 
 highway is common to all the kings 
 subjects alike : so far, therefore, 
 from the owner of the ferry hav* 
 ing any interest in the soil itself, 
 he has not even the inclusive right 
 to the use of it. Other boats may 
 kind there, though they may not 
 carry passengers or cattle for hire. 
 [Lord Ellenborough, C. J. The 
 owner of the ferry may be said, 
 perhaps, to have a right to make a 
 special use of the highway; but he 
 cannot be said to have the occu¬ 
 pation of the highway.] It is 
 merely toll thorough, which is 
 taken for passing over the highway, 
 in consideration of repair or other 
 benefit done by the owner of the 
 toll, but without any interest or 
 claim in the soil ; and not a toll 
 traverse, which originates in the 
 liberty given to pass over the own¬ 
 er’s soil. In JollifFe’s case the granter 
 of a way-leave, which is a mere 
 asement, was held not to be rate¬ 
 able for it: and a ferry is no more 
 than a public easement. All the 
 cases of rating in respect of real 
 
 occupancy have been where the 
 subject matter was corporeal visible 
 property in the parish, whatever 
 the form of the rate may have been. 
 In the case of the market toll of 
 Wickham, the corporation were 
 probably the owners of the soil. 
 In the other cases, where tolls have 
 been rated, the persons have been 
 rated for them conjunctively with 
 tangible real property, out of the 
 use of which they arose, such as 
 sluices, towing-paths, engines, boats, 
 wharfs, warehouses, canals, and the 
 like : but in Rex v. Rebowe (i) and 
 Rex v. Tynemouth (2), the tolls of a 
 light-house were held not to be 
 rateable, whatever the light-house 
 itself might have been under dif¬ 
 ferent circumstances. Turnpikes 
 are said not to lie rateable on ac¬ 
 count of the application of the 
 tolls to public purposes; but though 
 they were private property, the 
 occupier would only be rateable for 
 the turnpike house, and not for the 
 tolls co nomine. And in the case of 
 the sluice, being fixed to the free¬ 
 hold, it could be no other than real 
 property ; capable therefore of oc¬ 
 cupation, and the occupier of which 
 had such exclusive possession of it 
 as would have enabled him to main¬ 
 tain trespass. s 
 
 Lord Ellenborough, C-J. There 
 was a case of Williams v. Jones, 
 argued in the last term, which in 
 principle is the same as the present, 
 and will be governed by it, unless 
 the court should hereafter see any 
 special ground on which to dis¬ 
 tinguish it. The rate is here im¬ 
 posed on the tolls merely of the 
 ferry : and the question is,Whether 
 the proprietor of the ferry, who is 
 not an inhabitant of the township 
 in which he is rated, be liable to be 
 
 (1) Ante. 
 
 (a) Ante. 
 
 rated 
 
JI 3 
 
 y 
 
 Tolls of a Ferry. 
 
 0 
 
 tated for such tolls received by him King v. Cardington, the rate was 
 there? and this being a question specifically upon the sluices, on 
 upon the construction of the stat. that which was local and visible 
 43 F.liz. c. 2. it is mateiial to look property, and producing profit 
 to the words of it. By that statute within the parish; and all the 
 the paiish officers, by consent of cases where tolls have been held 
 two justices of the peace, are di- rateable, when they arc examined, 
 rected to raise a competent sum for will be found to have proceeded on 
 the relief of the poor by taxation of that ground. It was so in the case 
 11 every inhabitant, parson, vicar, of the Staffordshire and Worcester 
 « and other, and of every occupier canal: the company were there 
 « of lands, houses, tithes impropri- rated for “ their basins, towing- 
 *< ate, propriations of tithes, coal paths, and that part oi their canal 
 “ mines, or saleable underwoods in and the locks lying within Lower 
 « the said parish” Now, tolls do Mitton, and for the tolls and duties 
 not come within anyone specifi- arising therefrom due at Lower 
 cation of occupancy described by Mitton. There could be no doubt 
 the statute: they are not lands, that the basins, towing-paths, canal 
 nor houses, &c. If, therefore, the and locks, were local visible pro- 
 owner be taxable for them at all, pet ty there, and the tolls and du- 
 it must be as an inhabitant of the ties arising therefrom, classed and 
 parish out of which they arise: but connected as they are with the 
 there is no case in which the word local visible property rated, were 
 inhabitant in that statute has been considered as resulting from that 
 held to mean any other than a resi- local and visible property. In all 
 dent within the parish. In the these cases the tolls have arisen 
 cases which have occurred of rating from the use of the canal, which 
 in respect of personal property, is local and visible, being part of 
 such as the King v. Liverpool and the land itself, lying within the 
 the King v. Collison, which are parish where the tolls have been 
 mentioned in the King v. Jones, rated. But there is no case where 
 residence was considered necessary tolls detached altogether from local 
 to constitute inhabitancy. But we real property have been held to be 
 ate reminded of cases where tolls rateable perse. When therefore, we 
 arising from navigable canals, to are called upon to decide such a 
 which the tolls of a ferry are assimi- question for the first time, I am 
 lated, have been held rateable, am always disposed to go to the 
 without any reference to the fountain head, which is the act oi 
 question of inhabitancy : and the the 43 Eli*.; and looking at the 
 Wickham case is much relied on, words of that act, I do not find any 
 where a corporation was held of them which extend to rate any 
 rateable for market tolls: but person not being an inhabitant of 
 
 they were the lords of the soil the place, nor the occupier of any 
 
 where thfc market was held, in of the specific kinds of property 
 
 respect of which they were rated mentioned in the act. . And n 
 
 for the tolls. In the case of the finding any description in the 
 
 t lute 
 
 VOL. I. 
 
 i 
 
 Rex v. 
 Micboi oil. 
 
Hating incorporeal Hereditaments. 
 
 - > 
 
 tnte which applies to the case of 
 this appellant, 1 cannot Hold him 
 to be rateable for these tolls. 
 
 Grose J. declared himself of the 
 same opinion for the reasons given 
 by h is lordship, which he thought 
 it unnecessary to repeat. 
 
 Le Blanc J. the appellant is 
 rated specifically as the lessee of the 
 ferry for half of the tolls or ferry 
 dues in the township of Monk- 
 wearmouth-shore: and it is found 
 that he is an inhabitant of and 
 lives in Sunderland, and it is not 
 stated, that he is the occupier of 
 any propei ty in Monkwearmouth- 
 shore; and that brings it to the 
 simple question, whether a person 
 residing ©ut of the township be 
 rateable there for the tolls of a 
 ferry, which tolls arise and become 
 due to him for carrying passengers 
 and cattle from one shore to the 
 other, one of which lies in the 
 township. The origin of his rate- 
 ability, if it exisc at all, must be 
 sought for in the stat. 43 Eliz which 
 does not extend in terms to this 
 case. At the same time if the 
 won. s of it had received so extended 
 a construction as to include this 
 case in the various decisions which 
 have taken place upon the rating of 
 the proprietors of canal navigations, 
 I should have been disposed to ad¬ 
 here to the settled course of con¬ 
 struction. But this point not having 
 been decided in those cases, I can¬ 
 not, upon reverting to the words of 
 the statute, consider the appellant 
 as coming within any of the de¬ 
 scription of persons rateable there 
 given. It is contended thatheis an 
 inhabitant of the township within 
 the meaning of the act, and that 
 he is also within it as an occupier of 
 real property. Now, when the 
 
 word inhabitant is nsed as well 24 
 occupier, I must consider that by 
 the former was meant a person who 
 was resident in the place ; for one 
 might occupy without being resident, 
 and the statute meant to include 
 both : but this appellant is found 
 to have been resident in Sunderland, 
 and in that sense is not an inhabi¬ 
 tant . of Monkwearmouth-shore. 
 Then as to his occupation of n al 
 property in the latter township; 
 if this ferry and the tolls be real 
 property, still the appellant is not 
 the occupier of such real property 
 as is mentioned in the act of par¬ 
 liament. But they are compared to 
 the tolls of a canal, which it is said 
 have been held to be rateable pro¬ 
 perty within the statute: it will 
 be seen, however, upon examination, 
 that in all those cases, the parties 
 claiming the tolls for which they 
 were rated had an interest in some 
 local and visible property within the 
 parish connected with their interest 
 in the tolls; as where tljey were made 
 payable at their own wharfs or 
 warehouses, where the goods carried 
 on the canal were received or depo¬ 
 sited, or in respect of the line of 
 canal by which they were carried, 
 passing through the parish where 
 the tolls were rated. The case of 
 the owner of the packet-boats comes 
 very near to that of a person who 
 haS an exclusive right of carrying 
 passengers and goods in a ferry¬ 
 boat; but the packet owner was 
 only held to be rateable for his 
 profits in the parish where he re¬ 
 sided, and where the boats were 
 kept, and produced the profit to 
 him ; and he was considered not to 
 be rateable in any other place to 
 which the boats sailed where he was 
 resident. The appellant, therefore, 
 
 is 
 
WillUtns *. 
 Jones. 
 
 # 
 
 lolls of a Ferry. i15 
 
 * if 
 
 0 1 * 
 
 is Hot rateable for this property an action of trespass by Hugh wuiums 
 within the words of the statute, or Williams, the plaintiff’s testator, 
 the decided cases upon it either as against Jones and Hughes, for tak- ^pnetor^ot 
 an inhabitant or as an occupier. ing his ferry-boat on the 2-d of June, f erry lo iu. 
 
 Bayley J. This person is neither 1806, at Beaumaris in the county 
 an inhabitant of the township of Anglesey, and selling the same, 
 within the meaning of the statute, and converting the money arising 
 nor an occupier of any of the therefrom to their own use. I he 
 species o property mentioned in it; defendants pleaded not guilty, and 
 and when we are called upon to put also two several justifications; the 
 a construction on the act for the substance of. which was, that the 
 first time, we ought to abide by the supposed trespass was done by them 
 words of it. In a statute which in executing a.warrant of distress 
 mentions inhabitants as well as oc- duly issued after summons, See. by 
 cupier, inhabitant must mean resi- two justices of the peace lor the 
 dent, otherwise it would for this county of Anglesey, against the 
 purpose mean the same as occupier, said Hugh Williams for non-pay- 
 But the appellant is said to be an ment by him of a rate made for 
 occupier of the tolls, and that tolls the relief of the poor of the parish 
 have been held rateable eo nomine of Llandysilio in the said county, 
 in several cases; but in all those in which rate he was assessed as 
 cases it will be found that the per- proprietor and occupier of Tor- 
 sons rated were the occupiers of thaethwy ferry in that parish, in the 
 lands within the place, in respect of sum of iol. 13 s * > ar, d the payment 
 which the tolls in the whole or in of which was first duly demanded 
 part were payable. In the King v. of and refused by him. The plain- 
 Cardington the party was rated, tiffs below replied that the defend- 
 for the sluice was real property. In ants of their own wrong, and 
 the case of canal tolls, the proprie- without the cause by them alleged, 
 tors rated weie the occupiers of committed the trespass complained 
 the canals; and canals are real pro- of; and on issue joined, a special 
 perty: they are land applied to a verdict was found, stating in sub- 
 particular purpose, and the tolls stance; 
 
 are the profits arising from that use That Hugh Williams was the 
 of the land, and are to the proprie- proprietor of Porthaethwy ferry, and 
 tors as a compensation for the use of of the tolls thereof; the same being 
 it in that manner. Here the appel- an ancient ferry for the conveyance 
 lant was not an inhabitant of. of persons, cattle, and carriages, in 
 Monkwearmouth-shore, and he was boats across an arm of the sea, ca 11 — 
 not an occupier there of any real ed the straits of Menai, or the river 
 property, for which he was rate- Menai, from the county of Carnar- 
 able.—Order of Sessions quashed. von to the county of Anglesey, and 
 
 Williams v. Jones, 12 East, 346. vice versa : and the King’s highway 
 
 The plaintiff brought a writ of from London to Holyhead leads to 
 error to reverse a judgment given and from the said arm of the sea, 
 against her testator in the court within the limits of the ferry. For 
 of Great Session of Anglesey, in many years past there have been and 
 
 I 2 
 
 
Bating incorporeal Hereditaments . 
 
 116 
 
 Wi’liam# v. 
 Joaci. 
 
 I 
 
 now arc five landing places in the 
 parish of Llandysilio in Anglesey} 
 used by the ferry-boats on landing 
 from the opposite shore; which 
 landing places have within four 
 years before the making of th£ 
 rate in question been repaired and 
 improved by Mr. Williams, the pro¬ 
 prietor of the ferry; and for divers 
 years last past there hath been and 
 now is a post fixed in the ground at 
 one of the landing-places, to which 
 post the ferry-boats have been and 
 are usually moored when lying on 
 the Anglesey side. The said arm 
 of the sea is open at OHe end to the 
 bay of Carnarvon, and at the other 
 end to the Irish sea, and is navigable 
 to all the King’s subjects; and they 
 have always of right landed at the 
 several landing-places at their plea¬ 
 sure, and the proptietor of the ferry 
 never had nor hath the sole or ex¬ 
 clusive use of the said landing-places, 
 or either of them ; but has the sole 
 and exclusive right and privilege of 
 conveying by his boats persons, cat¬ 
 tle, and cariages, for hire, from a 
 part of the said King’s highway 
 lying in the parish of Bangor, in the 
 county of Carnarvon, to another 
 part ©f the said King’s highway, 
 lying in the parish of Llandysilio, 
 in Anglesey, and vice versa. During 
 all the time aforesaid the ferry-boats 
 have been worked and navigated by 
 the proprietor’s servants, hired and 
 paid by the day; and the tolls and 
 hire due and payable for such con¬ 
 veyance from the county of Car¬ 
 narvon to the county oi Anglesey, 
 have in fact paid to his servants for 
 the use of the proprietor of the fer¬ 
 ry, sometimes upon the said arm of 
 the sea, a little before the arrival of 
 the boats at the landing-places, and 
 sometimes in the boats at the land- 
 
 ing-places, and at other times upoff 
 the landing places in the parish of' 
 Llandysilio after the persons paying 
 the same have landed. And the 
 proprietor’s servants have from time 
 to time paid ovfer the tolls and hire 
 so received by them to his agent, re¬ 
 siding in part of a dwelling-house, 
 whereof Hugh Williams is seized in 
 fee, in the parish of Llandysilio, of 
 which house one T. B. is tenant 
 and has continually been rated in 
 his own name to the relief of the 
 poor of the said parish of Llandy¬ 
 silio, and has paid the rates assessed 
 upon him. And Hugh Williams’ 
 agent has never been rated, nor ever 
 paid any poor rates; and such agent 
 has from time to time, monthly, paid 
 over such tolls and hire to another 
 agent of Hugh Williams, at Beau¬ 
 maris,in Anglesey, out of the parish 
 of Llandysilio, for the use of H. 
 Williams. H. Williams never in¬ 
 habited or dwelt in the parish of 
 Llandysilio, and no proprietor of 
 the ferry or tolls or other person in 
 respect thereof, has at any time bee® 
 rated for the same to the relief of 
 the poor of the parish of Llandy¬ 
 silio before the making of the rate 
 in question. The special verdict 
 then stated that Hugh Williams 
 being such proprietor of the ferry, 
 before the trespass complained of, a 
 rate for the relief of the poor of the 
 parish of Llandysilio was duly made, 
 dated the 6th of Feb. 1806, in which 
 he was rated for Porthaethwy ferry 
 and the tolls thereof, at the sum of 
 lel. 13s.; which rate was afterwards 
 duly allowed by two justices of the 
 peace for the county of Anglesey, 
 and duly published in the parish 
 church of Llandysilio; and pay¬ 
 ment was afterwards duly demand¬ 
 ed of Mr. Williams by the defend¬ 
 ants 
 
 f 
 
Tolls of a Ferry, fyc. 
 
 ants the parish officers of Llandy- 
 siho; but he refused to pay the same. 
 And then it stated the complaint of 
 the parish officers to two magistrates 
 of the county; the summons issued 
 to Mr. Williams to answer before 
 the magistrates; his default; and the 
 due issuing of the warrant of distress, 
 by virtue of which the defendant 
 distrained one of Mr. Williams’ boats 
 for the amount of the rate, &c. But 
 whether upon the whole matter the 
 defendants of their own wrong, and 
 without the cause alledged by them 
 in their justificatory plea, committed 
 the trespass, the jurors prayed the ad¬ 
 vice of the court, and found a veidict 
 of guilty or not guilty accordingly. 
 The court below gave judgment for 
 the defendants; and the plaintiff 
 below having in the mean time 
 died, his executrix brought this writ 
 of error. 
 
 This case was argued in the last 
 term by Abbott for the plaintiff, 
 and by Barnes for the defendant. 
 The general arguments urged by 
 them for and against the rateability 
 of this species of property have, to 
 avoid repetition, been iuterwoven 
 with those urged by the counsel in 
 the last case, which was decided 
 immediately before this. Some 
 additional observation was made 
 in this case upon the circumstance 
 of the post driven into the soil, to 
 which the ferry boats were some¬ 
 times made fast on the Llandysilio- 
 shorc; but the court considered 
 that this did not essentially vary 
 the present question: for the owner 
 of the ferry was not found to 
 have any property in the soil of 
 the highway; and supposing that 
 he had a right to make such a 
 special use of the highway for the 
 purpose of securing the ferry boats, 
 
 \ 
 
 that did not make him the occupier 
 of the highway ; nor give him any 
 exclusive poissession of it; nor could 
 he maintain tresspass for any in¬ 
 jury done to the soil at the landing- 
 places, which weie common to all the 
 King’s subjects to land and pass up¬ 
 on. , And now, after the judgment 
 in the formercase had been delivered. 
 
 Lord Ellenborough, C. J. declar¬ 
 ed the opinion of the court, that the 
 decision of this case necessarily fol¬ 
 lowed that of the other, the ques¬ 
 tion in both being substantially the 
 same; and therefore they revers¬ 
 ed the judgment of the court be¬ 
 low. Judgment reversed* 
 
 Rex v. Eyre, ia East, 416. 
 
 The defendant appealed to the 
 Borough sessions of Tewkesbury, 
 against a poor rate, wherein he was 
 assessed as “ lessee of the tolls of 
 “ the Key Bridge” at Tewkesbury, 
 at 350I. per ann. The Sessions con¬ 
 firmed the rate, upon the general 
 principle, as they stated, that the 
 rent bond fide paid by the occupier, 
 is the best criterion by which to 
 judge of the value of property ; but 
 subject to the opinion of this court 
 upon the following case: 
 
 By the stat. 48 Geo. 3. c. 62,. ; cer¬ 
 tain trustees are appointed for re¬ 
 building the Key Bridge across the 
 river Avon, in the borough of 
 Tewkesbury in Gloucestershire, and 
 for making convenient roads there¬ 
 to. The act enacts that out of the 
 first monies arising from the tolls 
 to be collected by virtue ,of the act, 
 or out of the first money which 
 should be borrowed upon the credit 
 thereof, the trustees shall in the 
 first place pay the cxpences of pass¬ 
 ing the act, and repay all sums ad¬ 
 vanced thereop, with interest, ani 
 3 also 
 
I iS 
 
 Hating incorporeal 'Hereditaments . 
 
 Sex v. Eyre. 
 
 s 
 
 I 
 
 also all expences in making the 
 plans and estimates of the bridge : 
 “ And that after payment thereof, 
 “ all the money which should come 
 “ to the hands of the tiustees or 
 “ their treasurer, for the purposes 
 “ of the act, should from time to 
 “ time be applied in erecting the 
 “ turnpikes or toll-houses, and in 
 “ making the temporary biidge, 
 ** and erecting the new bridge, and 
 “ keeping the same in repair, and 
 i( opening and making proper ap- 
 “ proaches thereto, and in defray- 
 “ ing all other necessary charges 
 “ and expences attending the execu* 
 “ tion of the act, and in paying 
 “-the interest of the principal 
 “ money so to be borrowed, and in 
 “ otherwise carrying this act into 
 “ execution; and to and for no other 
 “ use, intent, or purpose whatso- 
 “ ever.” “ That as soon as the se- 
 “ veral purposes of the act should 
 “ be carried into execution, and the 
 “ principal and interest borrowed 
 “ and secured thereon should be re- 
 “ paid, all the tolls thereby imposed 
 “ should absolutely cease, and 
 “ the new bridge and the ap- 
 “ proaches leading thereto, should 
 et thereafter be repaired by such per- 
 “ sons as were by law liable to re- 
 “ pair the same.” The trustees, be¬ 
 ing empowered by another claim to 
 lease the tolls, under the clauses 
 and stipulations therein expressed, 
 have leased the same to the appel¬ 
 lant, at the annual rent of 350I. It 
 has been the usual custom of the 
 parish to make their rates upon the 
 pound rent; but it was not proved 
 that the appellant made any profit 
 on the said tolls nor that such tolls 
 left any residue after payment of 
 the said yearly rent of 350I.: on the 
 contrary, it is believed that the pre¬ 
 
 sent lessee has a most unprofitable 
 taking, and that he will not even 
 clear his present rent. 
 
 The court, after observing upon 
 the loose and impel lect manner in 
 which the case was drawn up; in 
 net stating either that the lessee 
 was the occupier of ?-ny toll house 
 or dwelling-house within the parish 
 which was the proper subject mat¬ 
 ter of a rate; or that he was an in¬ 
 habitant of the parish, in the sens£ 
 which had been lat< ly put by the 
 court on that word in. the statute 
 43 Eliz. c. 2 ; and in not finding the 
 fact whether the lessee did itceive 
 any profit to himself from the tolls, 
 beyond the rent which was applica¬ 
 ble to public purposes, but merely 
 stating that it was believed that he 
 did not ; were inclined to have sent 
 the case back to the Sessions to be 
 restated in a more perfect manner. 
 But it being suggested in opposition 
 to the rate, that it would not an¬ 
 swer any purpose to send the case 
 back, all the facts having been 
 stated which were capable of pioof 
 on the part of those who supported 
 the rate; and that the only question 
 meant to be raised by them was* 
 Whether the tolls of a public bridge 
 were rateable in the handsof a lessee? 
 Lord Ellenborough, C. J. said that 
 as the court had so recently decided 
 that tolls per se were not rateable > 
 and that as the appellant was rated 
 merely as lessee ot the tolls, and for 
 nothing else, winch might have gi¬ 
 ven them a corporeal quality within 
 the parish, such as tor a sluice or the 
 like; and that as it did not appear 
 that he was an inhabitant of the pa¬ 
 rish, or made any profit of the tolls j 
 there was nothing stated in the case 
 to raise any question. And that 
 though it should turn out to be fact 
 
 (which 
 
 / 
 
\ 
 
 Bating incorporeal Hereditaments . x 19 
 
 But if tolls arc connected with real and substantial 
 property, it has been already observed that they may be 
 rated conjunctively with that property if situated within 
 the parish, which yields profit there by means of the 
 tolls, (1) 
 
 ✓ « r __ ! 
 
 (which was suggested from the bar) 
 that there was a toll-house attached 
 to the bridge where the appellant 
 dwelt: yet as the sending the case 
 back to Sessions to be restated, 
 would probably only lead to their 
 inserting as a fact what at present 
 they had only stated as matter of 
 belief, that the lessee derived no 
 profit to himself from the tolls; it 
 was better for all parties to quash 
 this rate ; and il' at any future time 
 the parish thought they could make 
 out a better case against the lessee, 
 
 Premises. 
 
 they might rate him again. Per 
 curiam , Order of Sessions confirming 
 the rate quashed. 
 
 (1) The King v. Sir A. Macdonald 
 and others, 12 East, 324. 
 
 This was an appeal against a- 
 poor’s rate made for the township 
 of Manchester, which was con¬ 
 firmed by the sessions on appeal, 
 subject to the opinion of this court 
 on the following case, 
 
 The property in respect of which 
 the appeal was made, was described 
 in the assessment as follows. 
 
 Assessment. Poor's Rate. 
 
 £. 5. d. £. s. d, 
 
 Rochdale canal lock, tunnel, dues 01 ? ^ 5 - l0 q 140 \2 6 
 rates - - - “ “ “3 
 
 Warehouse and wharf, bottom of Castle-? 0 0 r o 
 
 field. . 
 
 Staffordshiie warehouse 
 Warehouse on Manchester side 
 Knott Mill - 
 Coal wharf from Staffordshire ware¬ 
 house to Knott Mill - 
 Wharf adjoining Knott Mill 
 
 - 262 
 °. f }375 
 
 l 
 
 90 
 
 45 
 
 jo o 
 
 o o 
 
 o o 
 
 o o 
 
 65 iz 6 
 
 93 J 5 o 
 
 22 10 o 
 1150 
 
 Tolls rateable 
 with lock, &c. 
 
 i86q o o 465 o o 
 
 The appellants were not at the 
 time of making the assessment, in¬ 
 habitants ol Manchester, but were 
 then and still are entitled to and in 
 the receipt of tonnage, in respect of 
 vessels passing through the lock 
 built upon the Rochdale canal, un¬ 
 der an act of the 34th Geo. 3. the 
 ad section of which, reciting that 
 « VVhereas Francis Duke of Bridg- 
 water hath expended a consider- 
 
 I 
 
 “ able sum in making wharfs, for 
 “ the convenience of the .public, 
 
 “ adjoining or near to his canal at 
 “ Manchester, and when the pro- 
 “ posed junction is made with his 
 “ canal the profits arising from 
 « those wharfs will be considerably 
 » diminished ; nevertheless he con- 
 « sents to such junction on being 
 “ authorized to build a lock upon 
 “ the Rochdale canal near the juuc- 
 1 “ tion, „ 
 
 * \ 
 
 * 
 
120 
 
 Rating incorporeal Hereditaments . 
 
 Canal tolls, 
 when rate¬ 
 able. 
 
 It is scarcely necessary to remark, that the decisions 
 apply to all cases of tolls whether they accrue in re¬ 
 spect 
 
 ** tion, and to collect certain rates 
 '* hereinafter mentioned, as a com- 
 <c pensation for such diminution in 
 81 the profits of his -wharfage;” 
 authorizes the Duke, his heirs and 
 assigns, “ at his and their own ex- 
 “ pense, to build a proper lock upon 
 “ the said Rochdale canal, at or 
 “ near Castlefield, &c. and all ne- 
 “ cessary works thereto belonging ; 
 “ and to take at the said lock for 
 “ his and their own benefit, (as a 
 compensation for the diminution 
 “ in the profits of his wharfage as 
 “ aforesaid,) the following rates, 
 “ viz.” (and then gives certain rates 
 per ton for goods carried and navi¬ 
 gated from the Rochdale canal into 
 the canal belonging to the Duke, 
 and vice versa); “ which rates shall 
 “ be payable and paid at or near 
 “ the said lock to the said Duke, 
 “ his heirs and assigns, and shall be 
 “ collected by such person as the 
 “ said Duke, See. shall by writing, 
 ** Scc. appoint to receive the same.” 
 The lock was built in pursuance of 
 the act. The tonnage amounts to 
 as much as it is charged at in the 
 assessment. The appellants, at the 
 time of making the assessment, 
 were and still are in the occupation 
 of the lock and of the several ware¬ 
 houses and wharfs mentioned there¬ 
 in ; and the same are of the value 
 assessed. The proprietors of the 
 Rochdale canal company are not 
 rated for their locks upon the said 
 canal situated within the township, 
 or for tire tonnage, tolls, duties, or 
 rates, arising from such locks or 
 
 otherwise from the said canal with¬ 
 in Manchester; this being pro¬ 
 vided for by the stat. 47 Geo. 3., 
 entitled ‘ An Act toalcer and amend 
 the several Acts for making and 
 maintaining the Rochdale canal 
 navigation.’ 
 
 Lord EllenboroOgh, C. J. The 
 court will not involve themselves in 
 any contradiction to the cases which 
 have been decided, by discharging 
 the rule for quashing the order of 
 Sessions in this case, on the rate- 
 ability of the property of the trus¬ 
 tees. The case states that they are 
 the occupiers of the lock and of the 
 several wharfs and warehouses men¬ 
 tioned in the rate; and it is not 
 disputed that the property rated 
 yields profit: but it is objected 
 that they are rated for dues or 
 rates , that is, for the tolls payable 
 at the lock under the act of parlia¬ 
 ment ; and that the court have held 
 tolls not to be rateable. , But the 
 court have only said that, tolls are 
 not rateable per se, but only when 
 connected and rated conjunctively 
 with real and substantial property, 
 situated in the parish, which, as 
 yielding profit there by means of 
 the tolls, is {he proper subject of 
 rating within the act of Elizabeth. 
 Now here the lock itself is rated, 
 which is something real and sub¬ 
 stantial, locally situated in the 
 township, and producing profit; 
 and the addition of the dues or 
 rates is merely giving other names 
 for the same things. These dues or 
 rates are given by the act ofparlia- 
 
 T 
 
 \ 
 
 ment 
 
Rating incorporeal Hereditaments . 
 
 spect of markets, navigable canals, sluices, bridges, or 
 ferries. But it is material to observe, that in the 
 case of canal tolls, the Judges appear to consider the 
 canals as real property, being land applied to a parti- 
 • cular purpose, and the tolls as profits arising from this 
 use of the canal; so that the proprietors seem rateable 
 as occupiers of canals. (i) 
 
 ment as* a compensation to the wish nor the presumption to aim at 
 Duke of Bridgewater for the loss of disturbing a construction which the 
 his profits of certain wharfs adjoin- learned Judges have put upon tire 
 ing to his canal at Manchester, statute by so many, and such recent 
 w hich wharfs were before clearly decisions. But as he expressed it as 
 rateable in respect of those profits; his opinion, in former editions of 
 the rates, therefore, made payable this work, that this kind of property 
 at the lock were substituted as a was rateable per se, he trusts it will 
 compensation for and in lieu of the form some apology for a short state- 
 wharfage before enjoyed: they are ment of the reasons upon which 
 the substituted medium of profit that opinion is founded, 
 arising, as the act describes it, from The 43 F.liz. directs that the tax- 
 these"wharfs. The Court, there- ation shall be “ according to the 
 fore, by this decision, will not ability of the same parish.” It seem- 
 break in upon that which they have ed clear that incorporeal hereditaments, 
 recently decided, that tolls perse, or more correctly speaking, incorpo- 
 and when not mixed with a rate real tenements , constituted part of 
 upon other property, which, as hav- that ability, and consequently if the 
 ing substance and locally within the statute had stopped without .any 
 parish, is properly rateable there, are further description, the parisl^officets 
 not liable to be rated. most have assessed all persons in ac- 
 
 The other Judges concurring, tual possession of this kind of pro- 
 The rate and' order of Ses- perty. They could have made no 
 sions confirmed. distinction m fact, as theie was none 
 
 (1) Per I.e Blanc and Bayley, Js. in justice, between the proprietor of 
 Rex -y. Nicholson, ante. 107. See also the tolls of a market or fair, who had 
 Rex v. Aire and Calder Navigation, a right to piccage and stallage as 
 ante, 97. Rex v Page, ante, 9^* ar, d owner of the soil j and a proprietor 
 t.he opinions of JLor.d Kenyon, C. J. of tolls entitled to no othei use of 
 and Lawrence and LeBlanc, Js. Rex the land than what was essential to 
 1;. Staffordshire Canal, ante. the enjoyment of his fianchise: 
 
 It seems now settled that tolls or, between the ovvnei of a several 
 
 and other incorporeal hereditaments fishery entitled to the bed of the 
 
 are not rateable unless the possessor river, and the possessor of an exclu- 
 resides in- the rated district, or occu- sive right of fishing in water 
 pies some local visible real property flowing over land, of which the 
 there, which is connected with such barren and unprofitable seisin was 
 profits. The author has neither the vested in another. Ingenuity could 
 
 not 
 
I 
 
 22 
 
 < 
 
 Rating incorporeal Hereditaments . 
 
 not have raised a distinction between 
 the owner of tolls arising from a 
 canal who had no further interest 
 in the soil than a right of passage, 
 andanowneralsoentitledto the land 
 itself; and it must have been less al¬ 
 lowable, if possible, to make any 
 difference in the rateability, because 
 one proprietor landed his goods at a 
 wharf in his own possession, and 
 the other delivered them at one oc¬ 
 cupied by another, while the soil 
 of the canal was vested in neither. 
 In these and many other cases the . 
 duty of the individual to contribute 
 arising from his ability, is equal; and 
 if the quantum of profit be equal, 
 that ability must be equal also. 
 But the statute proceeds to specify 
 two descriptions “ of persons in 
 whom it supposes the ability of 
 “ the parish to rest, and upon whom 
 “ it on that account directs the rate 
 “ to be made;”—i. “ Every inhabi¬ 
 tant, parson, vicar, and other;” 
 and 2d, “Every occupier of lands, 
 houses,tithes impropriate,propria- 
 “ tions of tithes, coal mines, or sale- 
 “ able underwoods in the said pa- 
 &e rish.” It must be.allowed on the 
 one hand, that if these words can 
 admit of such an interpretation as 
 brings the entire ability of the pa¬ 
 rish into contribution, it should be 
 adopted in furtherance of the avow¬ 
 ed object of the statute. On the 
 other hand it must be conceded, 
 that if the words do not fairly ad¬ 
 mit of that construction, a court of 
 law is bound to reject it, without 
 regard to the result, however in¬ 
 equitable or injurious. 
 
 It was conceived that possessors 
 of these species of property might 
 be included under the term “ inhabi- 
 tantg although resident elsewhere; 
 because Lord Coke, in his comment 
 
 upon the statute of bridges, 2 Inst. * 
 702., lays it down, that under that 
 description, all possessors of real 
 property are assessable in the place 
 where such property is situate, 
 although they do not reside there. 
 This opinion has been recognized 
 as law by subsequent authorities, 
 and in particular Lord Kenyon, C.J. 
 relies upon it in commenting upon 
 43 Eliz. c. 2., 3 Term Rep. 523. 
 That great judge gives it as his 
 opinion in another case, that the 
 “ legislature intended that where 
 “ rates arg made for the relief of 
 “ the poor, every person should con- 
 “ tribute according to the benefit 
 “ which he receives within the pa- 
 “ rUh,” Rex v. Carlyon, 3 Term 
 Rep. 385.; and in another case he 
 lays it down, that the general object 
 of the act was to “ compel all those 
 “ who had any property in the parish, 
 
 “ to contribute their due propor- 
 “ tion to the maintenance of the 
 “ poor,” Rex v. Clapp, 3 Term Rep. 
 107. 
 
 But the argument against the 
 rateability is, that the possessor is 
 not within the words of the 43 Eliz. 
 
 1. Me is not rateable as an inhabitant , 
 because that signifies in this act, “ a 
 “ person resident in the parish,” for 
 u in a statute which mentions inha- 
 “ bitant as well as occupier, inhabi- 
 “ tant must mean resident, otherwise 
 “ it would for this purpose mean the 
 
 “ same as occupier.”—2. He is not 
 
 % | 
 
 rateable as occupier, because tolls and 
 property of that description do not 
 come within any one specification 
 of occupancy described by the sta¬ 
 tute, and the Judges have in many 
 cases doubted whether such pro¬ 
 perty lies in occupancy at ail. 
 
 1. With respect to the aigumcnt 
 upon the meaning of “ inhabitant 
 
 it 
 
123 
 
 Rating incorporeal Hereditaments . 
 
 • i ' s 
 
 it is humbly conceived that it as- lations, not only where he is excused 
 sumes the point in dispute ; for if from residence by 2,1 H. 8. c. 13 - but 
 inhabitants may comprehend pos- in every township ot his parish ex- 
 sessors of leal propeity, which cepting those in which his parsonage^ 
 
 “ occupiers ,” coupled as it is in the and glebe are situate, where the 
 statute, cannot; those words are poor are maintained by townships 
 not of necessity placed in opposi- under 13 and 14 C . 2 . This con- 
 tionto each other, as being-other- struction was considered as being 
 wise tautologous. The question ^strengthened by reference to sect. 3. 
 therefore continues open, whether of the statute; which provides a 
 « occupiers' ’ See. include all non- rate in aid of such parishes as are 
 residents to whom the rate must be unable to maintain their own poor, 
 confined in exclusion of others of That section applies the word m- 
 equal ability, or whether it amounts habitant, and no other, to compre- 
 to no'more than a partial enumera- hend all persons liable to be rated 
 tion by way of instance and instvuc- both in the parish requiring aid, and 
 tion to parish officers who are to in that by which it is to be given. It 
 administer the act. (1) seemed impossible then thatthewords 
 
 It was apprehended that the in that section “ inhabitants of any 
 meanin- of the terms “ inhabitant ” parish” could be considered as signi- 
 and “ occupier? should be follccted fying “ residents” in opposition to 
 as well horn their application in cor- “ occupiers for unless it includes 
 responding parts of the statute, and both; occupiers of real property will 
 a general view of its provisions and be excused from a rate in aid, it they 
 purport, as from the consideration do not reside in the parish required 
 of the sentence itself. It was to contribute. This interpretation 
 doubted whether u inhabitants” was relied upon as being Supported 
 could be considered as confined to and sanctioned by great authority. 
 inhabitant residents , because every Rex. v. Tunstall and Happing, 3 
 parson of a parish is made rateable Term Rep. 523. Lord Kenyon thus 
 by the statute under that descrip- expressed himself: “ Great stress has 
 tion. But if a resident is alone rate- “ been laid on the proviso in 40 G.3. 
 able as an inhabitant a clergyman “ which has the words inhabitants and 
 would under that construction be “ occupiers . Now the statute 43 Eire. 
 
 exempt from a rate for tithes and ob- “ uses the word inhabitants which 
 
 (t) The clause is considered as de¬ 
 scriptive rather than enumerative, 
 because the preceding words of 
 the section “ every inhabitant, 
 parson, vicar, and other,” seem so 
 intended As the pronoun has no 
 correllative but inhabitant, it fi Hows 
 that the' clergy are enumerated as 
 instances of inhabitants; and this 
 conclusion seems more plausible 
 from the remaining part of the 
 
 clause specifying all tithes in lay 
 occupation, and omitting those in 
 the hands of the clergy. Any other 
 construction would solve the dif- 
 ficulty ; for if “ other” does not 
 refer to “ inhabitant ” it must refer 
 to a description of persons not before 
 mentioned, and mean any other per¬ 
 son having ability in the parish, not 
 being an inhabitant, parson, or 
 vicar. 
 
 it 
 
 \ 
 
 7 
 
 HAS 
 
Hating incorporeal Hereditaments . 
 
 HA? BEEN HELD NOT TO BE'CON- 
 
 “ eined to residents. AndLord 
 Coke in his reading on the 22 H. 8. 
 “c. 5. relative to the repairing of 
 “ bridges by the inhabitants of coun- 
 “ ties,says, that the word inhabitant 
 “ includes those who occupy land in 
 “ the county though they do not re¬ 
 side there. For some purposes **- 
 “ habitants and occupiers are synony- 
 “ naous terms. When a person de* 
 “ rives a benefit from property which 
 he occupies in the parish he is Iia- 
 “ hie to contribute to the ease of it. 
 “ And in Rex v. Clapp we observed 
 “ that this was one of the modes by 
 “which he was to contribute to the 
 “ ease of the parish. If indeed the 
 “legislature had added the woid 
 ** resients to inhabitants in the act of 
 M parliament, that would have con- 
 “ fined this burthen to persons acfu- 
 * ally residing within the parish.” 
 
 a. The writer had likewise con- 
 eeived that if a non-resident posses¬ 
 sor could not be deemed rate¬ 
 able as an inhabitant, he became so 
 under the ad branch of the statute as 
 being an occupier of real property 
 within the parish. He had consider¬ 
 ed it tobe'received as settled law, that 
 the descriptions of property mention¬ 
 ed in the act were put by way of ex¬ 
 ample, and not as an enumeration of 
 those classes to which the rate upon 
 non-residents must be confined. 
 See ante. And the specification of 
 houses, which are clearly comprehend¬ 
 ed under the legal signification of 
 land, appeared to strengthen that 
 opinion which had been taken fiom 
 preceding authorities. 
 
 Upon the more difficult question, 
 whether such property was capable 
 of occupation, so as to rank the pos¬ 
 sessor under the description of a 
 rateable occupier, great doubts must 
 
 be entertained where so many and 
 such great judgeshavediffered in opi¬ 
 nion. But it seemed that the term 
 occupancy admitted of two distinct 
 meanings both in common language 
 and legal acceptation : the first re¬ 
 ferred to the means of acquisition, 
 or title-; the second respected the 
 mere possession. In the former 
 sense all incorporeal tenements and 
 hereditaments are incapable of being 
 occupied; and the rule applies to 
 tithes as well as tolls, rents, and 
 franchises. Lord C. J. Vaughan, in 
 his elaborate argument upon the 
 right of occupancy, Holden v. Small- 
 brooke, states, “There can be no 
 “ primary and immediate occupancy 
 “ of a tithe, for if it is not in its own 
 “ nature capable of occupancy more 
 “ than a rent or common is, and is 
 “ in fact in its nature but a rent, it 
 “cannot pass by itself but by deed 
 “ and as other things which lie in 
 “grant.” Vaugli. 191. But the 
 term occupant has been likewise 
 used in the books to signify posses¬ 
 sion of an incorporeal hereditament 
 where a qualification is subjoined to 
 denote the means of acquirement. 
 Fluis it was held so long ago 
 as 18 Ed. 3. that there might be a 
 special occupant of a rent. 18 Ed. 3. 
 44. Sc c. 33 Assiss.4. and thb descrip¬ 
 tion has been since adopted in subse¬ 
 quent cases. Whiskens v. Davies, 
 
 2 Roil. Abr. 151. Low v. Burdon, 
 
 3 P. Wms. 334, It seemed therefore, 
 if the word could receive that mean¬ 
 ing at all, that it should be adopt¬ 
 ed as being in furtherance of the pur¬ 
 pose of a statute which laid the rate 
 upon mere possession, without refer¬ 
 ence to the title, or regard to the ques¬ 
 tion whether it could be defended by 
 ejectment, assize, or trespass. This 
 interpretation appeared more natu- 
 
 11 ral 
 
Rating Tithes . 
 
 12$ 
 
 SECT. III. 
 
 Tithes . 
 
 The next species of property mentioned in the statute Tithes, 
 is “ tithes impropriate,” and “ propriations of tithes.” 
 
 These kinds of tithes usually exist in vicarages, but some¬ 
 times eleswliere. They are generally the great tithes se¬ 
 vered from the benefice, and due to some other person 
 than the vicar. They originated from the practice of *; ia f e ppro 
 annexing benefices to a spiritual corporation, either sole 
 or aggregate, which was considered as the perpetual par¬ 
 son of the living (i). This corporation provided a clergy¬ 
 man to officiate in its room, to whom the vicarial tithes 
 were assigned for subsistence; and the benefice, with the 
 remaining tithes, were appropriated to its own use. The 
 latter share is what is called in the statute 66 propriations, 
 or more correctly <fi appropriations of tithes.” Ad vow- 
 sons, amounting to more than one-third of all the pa- 
 rishes in England, got into the possession of religious yriat J 
 houses during the times of popery, by these means. Up- _ 
 on the suppression of monasteries, the 27 H. 8. c. 28. and 
 31 H. 8. c. 13. gave their benefices to the King, to hold as 
 they held them. Many of them were afterwards grant¬ 
 ed to the subject; and as they are called appropriations 
 while they continue in spiritual hands, they are called im¬ 
 propriations in those of the laity; and tithes payable to these 
 lay impropriators, are called 45 tithes impropriate .” (2) 
 
 ral because the possessor of appro¬ 
 priate and impropriate tithes was 
 called the occupier in the statute, 
 when at least in Lord C. J. Vaug¬ 
 han’s opinion such incorporeal here¬ 
 ditaments are incapable of occupancy 
 in the other,and possihly the mote 
 correct application of the word, and 
 the term is so used by the court in 
 
 Rex v. Lambeth, 1 Str. 525. as also 
 in other cafes. 
 
 (1) 1 Black, Com. 384. Grcndon 
 v. Underwood, Piowd. 496. Terms 
 de la Ley, voc. Impropriation ; and 
 Cowel’s Law Diet. 
 
 (?) Sir H. Spelman of Tithes, ch. 
 29. Cow, Diet. voc. Impropriation. 
 
 Tithes 
 
126 
 
 5. Property 
 of the clergy. 
 
 4.' Tithes 
 Rectorial and 
 vicarial. 
 
 5. A mo'dus. 
 
 Mating Tithes. 
 
 Tithes in the hands of the efficient incumbeht, whether 
 parson or vicar, are not expressly mentioned in the sta¬ 
 tute. But as it directs that the “ parson or vicar” shall 
 be taxed, it must intend that it shall be for that property 
 which constitutes the chief subject of their occupancy (1) f 
 tithes being deemed a tenement by our law. 
 
 S 
 
 Not only parsonage houses and glebe lands are rate¬ 
 able in the hands of the occupier (2), but both rectorial * 
 and vicarial tithes have been always deemed so, whether 
 due by common law (3), or by custom. Such are the 
 tithes of fish caught in the sea; for the legislature in¬ 
 tended, that when rates were made, every person should 
 contribute according to the benefit which he received 
 within the parish, and this is a certain annual profit 
 received within the parish without any risk run. (4) 
 
 A modus, or other composition paid in lieu of tithes, 
 is equally liable to this tax. Thus where by an inclosure 
 act, an allotment of common field land was made to the 
 rector in lieu of the tithes issuing out of the old inclosures 
 in the parish; and it was provided, that when the owners 
 of such inclosures had none, or not sufficient land in the 
 common field to make such allotment, they should pay 
 
 * I 
 
 ✓ 
 
 (r) For the propriety of applying 
 this term to tithes, see Rex v. Lam¬ 
 beth, 1 Str. 525. also the opinion of 
 Parker, C. J. Rex-i>. Turner,post. n.2. 
 
 (2) Rex <v. Turner, i Const/126. 
 PI. 158. Per Lord Kenyon, Rex v. 
 Catt. 6 Term Rep. 332. 
 
 (3) The parson or vicar presenta- 
 tive shall bear according to the reason¬ 
 able value of his parsonage, having 
 consideration to just deductions, 33 
 vesol. Judg. 1633. Dalt. 237. Per 
 
 Hale,C. J. Rex <v. - - 3 Keb. 255. 
 
 Rex v. Turner, ut supra. Rex v. 
 Skingle, 1 Str. 100. 
 
 r (4) Rexi/. Carlyon, 3 Term Rep! 
 385. The question made, respected, 
 a rate upon the lay impropriator's 
 tithe of pilchards; but the vicar was 
 also rated for his share, and no objec-. 
 tion made. As to when fish is tithe- 
 able cr otherwise, seeGould v. Arthur 
 1 Roll. Abr. 636 PI. 7. Anon. Cro. 
 Car. 264. lb. 234. Anon. Het. 1). 
 Guavas v. Kelvnac. Bunb. 256.3 Com. 
 Dig. tit. Dismes, (H. 13.) (H. 165 
 Williams v. Baron, 3 Wood’s Deer. 
 *3°* 3 Gwillira on Tithes, 931. 
 
 an 
 
Hating Coal Mines. I2 7 
 
 an annual sum to the rector, with power for him to dis¬ 
 train in case of non-payment, and sell the distress in such 
 manner as landlords are by law authorised to distrain lor 
 rent. This being a sum of money payable in lieu of the 
 tithes of the old inclosures, is liable to be rated as the 
 tithes themselves previously were. It is not a rent but a 
 composition for tithes, and the superadding a power of 6 0thcr 
 distress does not turn it into a rent, but rather proves ^ esiastical 
 the contrary (i). So alst) a rate or assessment directed 
 by statute to be mad$ in lieu ol all tithes and other ec¬ 
 clesiastical dues, is rateable, unless exempted by express 
 provision (2), as are likewise oblations or other offerings 
 which constitute the rectorial or vicarial dues (3), and 
 even a pension payable to the parson. (4) 
 
 SECT. IV. 
 
 Mines and other Fossil Productions . 
 
 The next species of property mentioned in the statute 
 are coal mines. These are rateable by the express woids 
 of the act (5). The particular use to which the produce 
 of a coal mine is applied, by the owner of the lands, does 
 not exempt it from this tax. r I hus, if the coal is used 
 for smelting the ore of his iron mine, the coal is rateable, 
 although the ore is not. For, there is no difference 
 whether it is thus applied by the owner, or sold by him 
 
 to another, who uses it in an iron foundery (6). But it 
 
 - % 
 
 (1) Lowndes <r. Horne, a Black, <v. Bull. Lord King’s MSS. Mic. 
 1251. Term, 4 Geo. 1 . 
 
 (a) Rex «y. Toms, Doug. 401* (5) Rex«y. Parrot, jTerm Rep.593, 
 Rann. *. Picking, Cald. 196. and see (6) Rex 9. Cunningham, and others, 
 Rex v. Topham, 1 a East, 546. 5 E ast > 47 ^* Mich. 45 Geo. III. 
 
 (3) Per Lord Kenyon. Rex v. Under what circumstances it is rate- 
 
 Carlyon, ut supra, 126. n. (a). able as t0 beneficial occupation, see 
 
 (4) Per Nares, J. Lowndes v. Rex v. Parrot, 5 Perm Rep. 593 - 
 Horne, % Bl, Rep. 125a. cites Powell Rex v. Bidworth, 8 East, 3 ^ 7 ' P ost * 
 
 has 
 
123 
 
 Hating Coal Mines . 
 
 has been held, that as other mines were known in the 
 country when the statute passed, the mention of this in¬ 
 ferior species of mine amounts to a tacit exemption or ex¬ 
 clusion of all others, such as lead; tin, copper, iron 
 Metal mines mines (ior any other but coal mines. The reasons 
 not rateable. ass jg ne( i f or this are, 44 that they are not within the 
 
 44 letter of the statute, and if the legislature had meant 
 44 to include them, they would either have enumerated 
 44 them, or used the word mines [or some equivalent ex¬ 
 pression or other, as mineral works, in 31 Eliz. c. 7.] 
 
 ' <£ so that the word coal mines expressly excludes mines 
 44 of any other sort as much as if they had been ex- 
 44 cepted. They are liable to more hazard and expence, 
 44 and are governed by particular laws; the worker of 
 44 them is not always the owner of the soil; a local law 
 44 gives the right of working under certain regulations 
 44 and conditions to other persons than owners or lessors, 
 44 or persons having any right of property in them.” It 
 is also said, 44 that there is an infinite expence and anxi- 
 44 ety in finding lead mines, and the finder is obliged to 
 44 pay certain proportions to the owner of the land; and 
 44 there is a much greater risk in the search after them, 
 
 44 even so much as that a man may be ruined by it in- 
 44 stead of succeeding.” {2) 
 
 It has been already shewn, that the owners of duties 
 arising out of metallic mines, such as the lot and cope of 
 lead mines (3), the toll and farm tin of tin mines (4), are 
 rateable when they are paid clear of deduction, and freed 
 from the hazards of working. 
 
 1 
 
 (t) Rex v. Richard Cunningham, 127. PI. 164. Per Lawrence, J. 
 Mich. 45 Geo. I IT. where upon a a East, 167. 
 
 question, whether an iron mine was (3) Rowlls 1/. Gells, Cowp. 451. 
 
 > rateable, the court held it not to be I Bott, 146. PI. 174. 
 
 so, and that the case was too clear to (4) Rex u. St. Agnes, 3 Terra 
 admit of argument, 5 East, 478. Rep. 480. I Bott, 192. PI. 19f • 
 
 (2) The Smelting Company v. 
 
 Richardson, 3 Burr. 1341, 1 Bott 
 
 Neither 
 
 / 
 
129 
 
 Rating Coal Mines. 
 
 Neither does the exception extend beyond mines pro¬ 
 perly so called. Lime-works are not comprehended 
 within it, but their profits are rateable in the hands of 
 the occupier, although uncertain in their amount, owing 
 to the expence and risk of working. (i) 
 
 Upon the same principle, the occupier of a slate Lime works 
 quarry is held rateable, though the quarter sessions alat^works. 
 stated in the case, that the working of such quarries 
 is a thing of great expence and risk, and is always con¬ 
 sidered as a matter of uncertainty and speculation, and 
 that the 44 slate mines” had never been rated before. For 
 the word 44 mine having slipped in at the end of the case, 
 
 44 cannot alter the nature of the thing, which is no mine 
 44 in the proper sense of the word; and if every sub- 
 44 stance which is raised from under the surface of the 
 44 soil i§ to be considered as the produce of a mine, and 
 44 therefore that the promts of it are not rateable, the 
 44 exception will equally extend to gravel, sand, marie, 
 
 44 stone and the like, none of which were ever considered 
 44 as the produce of mines.” (2) 
 
 Further it was held to be so clear as not to endure 
 discussion, that claypits worked (for the purpose of getting 
 potter’s clay) at considerable expence, and with consider¬ 
 able, though fluctuating profit, are rateable. (3) 
 
 f • • — *. * • •* ’ «*. ■’ .** 1 * v f - , > ■ ‘ t 
 
 Some of the reasons assigned by the court for not Why mines 
 rating other mines, seem to favour the conclusion, not profitsT* 
 only that the legislature by the expression of one species em P ted * 
 of mine designed to exclude the remainder by reason of 
 their peculiar laws, but that it was never intended to rate 
 mere casual profits of a similar nature, from whatever 
 subject they arise. (4) 
 
 (1) Rex -p. Alberbury, I East,534. (3) Rex v. Thomas Brown, Trim 
 
 Per Lord Mansfield, arg. Atkins, v Term, 47 G. 3 . 8. East, 528. 
 
 Davis, Cald. 338. (4) See the opinions of the judges, 
 
 (a) Rex t. Woodland, 2 East, 164. Rex v. Baptist Mill Company, 
 
 I Maule and Selw. ante, 86. 
 
 k The 
 
 ex- 
 
 VOL. I. 
 
Bating Coal mines . 
 
 ■ | _ t / , . ► ' r . 
 
 The 43 Elizabeth enacts, that the rates shall be made 
 for short periods, and manifestly refers to the profits 
 which accrue according to the common course of affairs 
 during that time. It purports to raise at all times the 
 necessary funds upon the usual income of the parish. It 
 makes the rate prospective, so that the former return of 
 profit must constitute the foundation of the ensuing as¬ 
 sessment. This cannot be unless the amount admits of an 
 average certainty, which is n®t to be affected by an irre¬ 
 gular swell from casual profits, or diminution by subse¬ 
 quent losses. 
 
 It is further observable, that the statute does not tax 
 capital, but the produce of capital. If a man builds a 
 house, the occupier is rateable for its yearly value as soon . 
 after it is built as it is occupied (I); for the amount of the 
 capital exists in the house itself, and the annual produce 
 of that capital is the fair subject of rate. But where a 
 shaft is sunk for ajnetal mine, the capital is in the first 
 instance consumed; it rises again only in the ore. To 
 rate the entire ore, deducting the expence of raising the 
 specific quantity, would be to rate the capital itself, in¬ 
 stead of its produce; and the uncertainty attending such 
 works, renders it doubtful whether the profits will ever 
 repay the expence. The whole property is in constant 
 hazard, and its value may alternately sink or rise beyond 
 the costs of the adventure, just as the buckets do by which 
 the mineral is raised. The adventurer would be taxed for 
 a year of profit, but he could have no allowance for a 
 losing year, although it might draw the former profit 
 back again into the mine, and sink much additional 
 capital with it. 
 
 There is a great distinction also between the uncertain 
 amount of profit; and the uncertainty of profit altogether 
 which is attended with risk of capital. Every object of 
 
 (i) Per Willes, J. Atkins -r. Dark, Cald. 333, 
 
 \ 
 
 human 
 
Hating saleable Underwoods. 
 
 liuman care ancl culture is subject to the first. Uncertainty 
 in the amount, while the capital or direct subject of the 
 tax is permanent, forms no grounds for a general exemp¬ 
 tion from the rate, although it may for particular abate¬ 
 ments proportioned to the diminution of profit. But 
 uncertainty of profit puts the capital in hazard, and is a 
 matter of speculation and chance. If any thing is derived 
 from the risk, it is not properly an occupier’s profit, at 
 least of an occupier for that short period which the statute 
 has in contemplation. It may be said indeed, that both 
 are uncertain, and that the loss of profit on a farm may 
 ultimately diminish the actual capital employed, as it 
 does in a copper mine. But the probable risk of capital 
 is the characteristic of the latter undertaking, and the 
 ground of distinction. 
 
 Coal mines are of a mixed character: the working is at¬ 
 tended with a degree of certainty, and therefore the mine 
 itself may be considered as the capital, and the coals at 
 the pit’s mouth as its return. The principle explained 
 here seems to be that which is meant by what the 
 books call a “ permanent value” (i). The recent deci¬ 
 sions of the rateability of lime and slate works, do not 
 overturn it (2). These are not mines in any sense of the 
 word, and although the working may be attended with 
 hazard, it is only as to the amount of the return, but not 
 of a considerable capital. 
 
 SECT. V. 
 
 Saleable Underwoods. 
 
 The 43 Eliz. points at these principles more manifestly 
 by the last species of property, which it mentions as 
 
 (1) Per Lord Loughborough, At- Baptist Mill Company, i Maule and 
 kins v. Davis, Cald. 337, 338. And Selw. ante, 86. 
 
 see the opinion of Lord Mansfield, (2) But what is said by Buller, J- 
 Rowls -v. Cell, Cowp. 451. x Botr, Atkins v. Davis, Cald. 325. is contra, 
 146. PI. 174 -> an£ l of Ashhurst, J. Rex v. Richard Cunningham, Mich. 
 Atkins v. Davis, Cald. 330. Rex <v. 45 G 3. ante, 137. (6). 
 
J 3 2 
 
 Saleable un¬ 
 derwoods, 
 what ? 
 
 Bating saleable Underwoods. 
 
 rateable in the hand of the occupier, viz. Saleable Under¬ 
 woods. Woods, consisting of what is called great wood 
 or timber trees, of 20 years growth and upwards are 
 exempt from contributing to the poor, as they are freer 
 from tithes (1). For they are not the profits of the oc¬ 
 cupier considered as such, but parcel of the inheritance 
 
 itself. (2) . 
 
 The court of king’s bench have by a solemn judg- 
 
 ment determined, that by “ saleable underwoods” the 
 
 legislature meant “ underwoods intended or destined tor 
 
 “tale, in contra-distinction to such as are to supply 
 
 « the landlord with estovers for fuel, and the other pur- 
 
 « poses of the estateand that they are not to be rated 
 
 for that year only when a periodical profit can be fair iy 
 
 and seasonably made of them; but that “ they are at all 
 
 « times rateable,” according to the improvement in then- 
 
 value, or in the rent which might fairly be expected from 
 
 them M. And the mode in which woods are managed 
 
 for 
 
 (1) Com. Dig. Tit. Dismes (H. 3.) period, it throws a glut into the fund 
 
 1 Gwillim, is, 16. Walton ■». Tryon, in that one year, and is barren all the 
 
 „ ... % rest of the period, and if the owner 
 
 (a) Herlakenden’s case, 4 Rep. 6 ». has other property in the parish, he 
 a Robert Liford’s case, II Rep. 466.: will pay so much less for that in the 
 
 and see other authorities, 1 Com. Dig. same year when his ability is in- 
 
 • xfW \ creased. However as it is a case of 
 
 tit. Biens 
 
 (i) Rex w. Mirfield, ioEast, 419. extensive consequence, we will con- 
 Lord Ellenborough, C. J. The sider further of it. Near the end of 
 owners of this kind of property are in the term His Lordship delivered the 
 the habit of cutting certain proportions opinion of the court. _ 
 of it every year: but where the “ This was an appeal against a poors 
 extent of it is too small to adopt this rate for the parish of Mirfield, in 
 course, there maybe a difficulty in which the appellant, Henry Beau- 
 rating it annually. There is great mont Esq., was rated for some under¬ 
 difficulty however on the other hand, woods. The underwoods were such 
 in attaining any thing like equality by as are usually cut down once in ax 
 adopting a different mode of rating: years, and in the year they are cut 
 for if the property is only to be rated they produce profit, but in other 
 when it is cut once in 21 years; years they are stated as producing 
 instead of contributing its quota of none. At the time of the rate they 
 
 the rate equally through the whole were io years standing. The sessions 
 
 thought 
 
Rating saleable Underwoods. 
 
 for timber and underwood are different, so that the 
 manner of treating it, is evidence of the class in which it 
 
 ; . • » 
 
 f 
 
 . % 
 
 thought they were not rateable, and able property of the rest of the 
 therefore quashed the rate; but parish, and may be much greater or 
 submitted the question to this court, much less than the aggregate sum it 
 whether they were liable to be rated would pay if it were rateable at all 
 every year, according to the annual times. Suppose the underwoods in 
 average value thereof; or whether the year they are cut would pro- 
 they should be rated then only when duce a clear ioool.; that the sum 
 they are cut down and produce actual to be raised in the parish, communi- 
 profit. Atjiong the several descrip- bus annis, is iool. ; and that the 
 tions of persons whom the stature value of the rest of the property in 
 43 Eliz. c. 2. makes rateable, the the parish is 980I.; if the under¬ 
 occupier of saleable underwoods is woods be rated at 20I. a year, which 
 one: and the question is, whether may be the rent they would produce 
 they can be deemed saleable under- upon a 21 years lease, the rates 
 woods, except in the year in which would amount to 2s. in the pound, 
 they are cut down. The word sale- and the underwoods would con- 
 able has not a very precise, definite tribute annually 40s. If they were 
 meaning; it may mean when they rated only in the year they were 
 are in a fit state for sale, referring cut, a shilling rate would then be suf- 
 to the time when they are cut; or ficient, and they would contribute 
 it may mean such as are intended rather more than 50I. So far there 
 or destined for sale, in contradiction would be no injustice; but suppose 
 to such as are to supply the land the rest of the parish to be worth 
 with estovers for fuel and the other io,oooh, the underwood would, sup- 
 purposes of the estate. In the posing them as before to be rated 
 former of these cases they would at ,201., contribute annually about 
 only be rateable in the year in which 4s.; whereas if rated in the year of 
 they are cut: in the latter, they cutting, they would contribute in the 
 would be rateable at all times; and proportion which ioool. bears to 
 we think, after full consideration of io,oool., that is the nth part of 
 the subject, that the latter is the the whole rate of iool. which in 
 proper meaning. If they are rate- money is 9I. and a fraction. As 50I. 
 able at all times, they will contribute, then is only 25 times 40s. and 9I. 
 according to their value, in exact is 45 times 4s., the disproportion in 
 proportion with the rest of the pro- the two cases put is obvious, and the 
 perty in the parish: but if they are difference to all parties, whether the 
 rateable in that year only in which rate be annual, or in the year only, 
 they are cut, the sum they will have considerable. Again, suppose the 
 to contribute may materially vary annual value of the parish 6000b, 
 according to the proportion their and the annual sum to be raised 
 value bears in that year to the rate- still iool., the rates will be 4d. in 
 
 K 3 . the. 
 
 133 
 
Rating saleable Underwoods. 
 
 is to be placed, so as to be considered as liable or 
 exempt from assessment. When woods are managed 
 as underwood, all the small wood is cut down at Ceitain 
 periods, leaving standing trees at certain distances. 
 Wherever woods are intended for timber, the laiger trees 
 are cut down and the smaller wood is left, (i) < t 
 
 the pound, and the underwoods will reaped or taken from the property 
 
 pay annually 6s. 2d. upon their same 
 supposed annual value of acl., whereas 
 if they paid in the cutting year only, 
 they would pay 14I. 5s. 8d. which is 
 above 42 times 6s. 8d, Put the 
 annual value of the parish at 5col.; 
 the rates to raise iool. must be 4s. 
 in the pound; but, in the cutting 
 year, they would only be is. 4d. 
 The underwoods would contribute 
 in ordinary years, upon the ‘ last 
 mentioned assumption of the annual 
 value of the rateable property in the 
 parish, 4I. annually; whereas in the 
 cutting year they vvoull contribute 
 little less than 20 times that sum, 
 viz. 75I. It is hardly necessary to 
 state that a mode of rating which 
 might produce such differences to the 
 owner of this description of pro¬ 
 perty, and to the parish, if he con¬ 
 tributed only in the cutting year, 
 cannot be the true rule; and the 
 only other rule is a constant con¬ 
 tribution, which will at all times fall 
 equally upon this and every other 
 species of property. The objection 
 to this, in argument, is, that the pro¬ 
 perty ought npt to be rated until 
 the produce of it has been severed 
 from the land, and until it has sup¬ 
 plied the occupier with the means of 
 paying. But we are of opinion that 
 it is not necessary that any of the 
 profits should have been actually 
 
 11 
 
 during the period for winch the rate 
 is made; but that the property is at 
 all times rateable according to the 
 improvement in its value, or in the 
 rent which might fairly be expected 
 from it. Instances continually occur 
 in which the occupier is rated 
 though he has derived no profit, 
 during the period for which the rate 
 is made. A new tenant upon an 
 arable farm reaps none of the produce 
 till the autumn after his tenancy 
 commenced, and yet he must pay 
 up to that autumn according to the 
 rent or value of the estate. He 
 must pay before hand for the future 
 probable produce. His farm is con¬ 
 stantly in a progressive state towards 
 producing profit; and he pays for 
 that progress. So underwoods are 
 annually improving in value, and the 
 rates the occupier pays are for that 
 improvement. This rnay possibly be 
 hard upon tenants for life ; but if the 
 laws have thrown this burthen upon 
 the property, they take it with that 
 burthen. We think, for the reasons 
 we have mentioned, that the law has 
 so thrown it; that the property is at 
 all times liable to be rated when¬ 
 ever rates are made; and conse¬ 
 quently that the order of tessions 
 ought to be quashed, and the rate 
 confirmed.” 
 
 (1) Aubrey v, Fisher, 10 East, 449. 
 
 This 
 
Rating saleable Underwoods. 135 
 
 This exemption of wood is not confined to trees Timber by 
 coming within the strict legal description of timber, such custotn * 
 as oak, ash, and elm; it is sufficient if the trees in 
 question are deemed so by the custom of a particular 
 district. Thus woodlands, the trees growing thereon 
 consisting chiefly of beech, and some oak and ash trees, 
 there being no coppice wood, and the underwood being 
 left to grow as standards, were held not rateable, beech 
 being found by the sessions to be timber , by the custom 
 of that particular part of the country (1). And it retains 
 the privilege, although it be put to the uses of under¬ 
 wood, being cut and made up in parcels for firing. (2) 
 
 • < * > , 
 
 Also when beech or any other particular wood has 
 been determined to be timber by the custom of the 
 country, it is to be taken to be timber according to the 
 rules of the common law respecting timber in general; 
 and therefore an issue whether timber or not ? will only 
 let in the enquiry as to the particular species of wood; 
 and no evidence can be received to shew, that though of 
 20 years growth it is not by such custom accounted 
 timber, and consequently continues rateable, unless the 
 tree contains 10 feet of solid wood. (3) 
 
 (1) Rex Minchin-Hampton, 3 
 Burr, 136. Aubrey v. Fisher, 10 
 East, 446. See also Lapthorne’s 
 case, 1 Roll. Rep. 355. 2 Roll. 
 
 Abr. 814. 1 Inst. 53. a. So as to 
 
 tithes, Wright v. Powie, I Gwillim, 
 357.; and if it be accounted timber 
 by the custom of the particular parish 
 where it grows, that is sufficient, 
 tor it needs not be so throughout 
 the country. Per Lord Mansfield, 
 Rex v. Minchin-Hampton. Per 
 
 Lord Hardwicke in the case of 
 tithes, Walton -y. Tryon, ?, Gwill. 
 833 - 
 
 (a) Ibid. Also where the tree is a 
 timber tree either by common law, or 
 by the custom of the country, it is 
 free from tithes both as to the body, 
 lops, and tops. Per Lord Hardwicke, 
 C. Walton <y. Tryon, 2 GwilL 832. 
 But Greenway v. Earl of Kent, Bunb. 
 98. is contra. 
 
 (3) Aubrey <v. Fisher, 10 East, 446, 
 
 K. 4 
 
( i3 6 ) 
 
 CHAPTER VII. 
 
 Of Property exempted by particular Statutes . (i) 
 
 principles already detailed respect real property, 
 as it is affected by the 43 Eliz. c. 2. They seem to 
 extend to all property of this kind, however modified by 
 subsequent statutes, unless their operation is controlled by 
 positive enactment. Thus by a private statute 9 & 10 
 W. III. c> 37. for erecting workhouses in Colchester, the 
 poor are directed to be provided for in a particular man¬ 
 ner, to the intent no other levy or assessment be made for 
 the poor of the town, and the occupiers of lands and tene¬ 
 ments are made chargeable, but no mention is made of 
 tithes in this private statute. Yet they were held rate¬ 
 able ; for being liable by 43 Eliz. c. 2. they could not be 
 exempted but by express w r ords, and an occupier of tithes 
 is an occupier of a tenement , which word is mentioned in 
 the act. (2) 
 
 But particular things, which would be liable to the tax 
 under 43 Eliz. may claim exemption by subsequent statutes, 
 and in some instances, they have been considered as exone¬ 
 rated by general words. 
 
 Thus, where houses and lands given to charitable uses, 
 were by a private act (3) declared “freed, discharged , and 
 “ acquitted of and from the payment of all and every manner 
 66 of taxes, charges , and assessments , civil and military vchat- 
 
 (1) See Rex v. Dock Company of likewise cases which embrace the 
 Hull, ante, 74. Kemp v. Spence, construction of piivate statutes, 
 ante. Lowndes v. Horne, ante, 126.(3) (2) Rex v. Skingle, 1 Stra. 100. 
 
 Rann v- Picking, ante, 127. (1) are (3) 12 Car. 2. confirmed and per¬ 
 petuated by 13 Car. 2. 
 
 « 
 
 soever , 
 
Of Property exempted by particular Statutes . 13 7 
 
 soever , hereafter to be laid , and that the occu¬ 
 
 piers shall not at any time hereafter be rated, &c .for or 
 towards any manner of public tax , assessment , or charge , 
 whatsoever , they were held exempt from the poor’s rate, 
 it being considered « public tax , or levy of the parish, 
 within 3 W. & M. c. 11. s. 6 . (1) So where 7 Geo. III. 
 c. 3. enacted, that lands to be enclosed and embanked 
 from the Thames, shall vest in the owner, & c. free from 
 cdl taxes and assessments whatever: houses erected upon 
 this ground, are not liable to the poor’s rate, for this act 
 being subsequent to 43 Eliz. c. 2., and the lands them¬ 
 selves being exempted thereby, so must also the houses 
 built thereon. (2) 
 
 Likewise, where by 19 Geo. III. c. 60., the parish St. Mi- 
 officers of the parish of St. Michael’s, in Coventry, are Coventry, 
 to raise yearly by a pound rate, any sum not exceeding 
 300I. nor less than 280I., and to pay the same to the 
 vicar, by equal quarterly payments, 64 clear of all taxes, 
 deductions, charges, and extras whatever, parochial, par¬ 
 liamentary, or otherwise howsoever;” which said sum is 
 to be in full satisfaction of all the vicar’s claims under the 
 act; and is 44 in lieu and full discharge of all ancient 
 44 payments, Easter offerings, tithes, and other ecclesiasti- 
 44 cal dues, claims, and demands whatsoever, except 
 44 surplice fees.” This salary is not liable to the poor’s 
 tax. (3) v 
 
 By 10 Geo. 3. the incorporated company of the pro- Liverpool 
 
 prietors of the canal navigation from Leeds to Liverpool canal ‘ 
 
 are enabled to make a navigable canal, and take a certain 
 
 sum per mile, for the tonnage and wharfage of goods 
 
 « 
 
 . 
 
 (1) Rex x?, Scott, 3 Term Rep. Rep. Williams v. Pritchard, lb. 195. 
 
 602. PI. 199. 
 
 (2) Eddington v. Borman, 4 Term (3) Rex v. Toms, Doug. 401. 
 
 navigated 
 
Of Property exempted by particular Statutes. 
 
 navigated thereon, and so in proportion for any greater or 
 less quantity. It is also enacted, “ that the said tolls, 
 rates and duties, should at all times thereafter be exempt 
 from the payment of any taxes, rates, assessments, or imposi¬ 
 tions whatsoever, any lav/ or statute to the contrary not¬ 
 withstanding, other than such taxes, rates, and assessments ? 
 as the land which should be used, for the purpose of the said 
 navigation would have been subject to, if this act had not 
 been made .” The meaning of this exemption is, that the 
 company shall not be liable to any other taxes than those 
 which the land they make use of in their undertaking 
 was previously subject to. As the land, therefore, was 
 not before liable to be rated for tolls, the proprietors shall 
 not be liable to a poor’s rate or tolls in respect of it, when 
 converted into a canal. (i) 
 
 The land will be rated in the same manner as it. was 
 before the act. (2) 
 
 Another part of the canal is exempted altogether from 
 assessment for tolls, by 20 Geo. 3. (3) 
 
 1 . 
 
 A case was sent up from the court of quarter sessions 
 in Devonshire, concerning the validity of a poor rate. 
 The statute 7 Geo. III. for building Stonehouse budge by 
 s. 19. exempted it from “ the land tax or any other public 
 or parochial rate or tax whatsoever;” and by s. 20. pro¬ 
 vided, that certain persons, and their heirs, should stand 
 seised of the toils of the bridge, “ to the same uses, 
 trusts, and estates, and subject to the same wills, settle¬ 
 ments, limitations, remainders, charges, tenures, rents, 
 and incumbrances,” as the ferry was, in lieu of which 
 the bridge was erected; and held, that the word charges 
 only extended to private charges on the estate. (4) 
 
 (1) Rsx v. The Leeds and Liver- (3) lb. 
 pool Canal Company, 5 East, 323. (4) Case of Stonehouse Bridge, 
 
 (a) Per Le Blanc, J. Ibid. 5 East, 356. n. a. 
 
 The 
 
i 3 9 
 
 Of Property exempted by particular Statutes . 
 
 The London Dock Company upon the construction ^°£ om _ 
 of 39 & 40 Geo. 3. c. 47. were held liable to be rated in pany . 
 the poor’s rate, during the first twelve years oi their 
 establishment for the fair annual value oi their ware¬ 
 houses and other works winch are finished, and pio- 
 ductive, though all the works directed by the act be 
 not completed. But such completed works must under 
 these circumstances be rated for their value at 8 Id. io 
 the pound, that being the rate calculated upon in 
 the act, to raise 139I. 8s. 7d. per quarter, upon 3966L 
 which was the average rental for ten years preceding 
 the act of the premises destroyed by the company in 
 making their works; and which quarterly sum the com¬ 
 pany were at all events bound to pay to the palish 
 during the 12 years, or until the works were completed, 
 whether those works were productive or not. But 
 when productive beyond that sum, the surplus [rate] is 
 to be taken in the first instance by the company in 
 order to reimburse such sums as they advanced to the 
 parish to make good the difference [between the sum of 
 139I. 8s. 7d. which they paid, and what a rate upon their 
 property as it became productive would have produced] 
 before any productive surplus existed, until the com¬ 
 pany should be reimbursed such deficiency. Therefore 
 until these purposes are effected, a rate on the increased 
 real value, at more than 8^d. in the pound, or a rate 
 at 8 |d. in the pound on 39I. 6s. 6d. the old average 
 value of the premises, and below the increased value 
 of the new works, is bad. (1) 
 
 At a sessions holden for the city and county of Norwich, St. John's 
 
 * r, ! Madder- 
 
 Ann Sutcliffe appealed against an assessment ot 1001. mar k e t. 
 
 stock, charged upon her for the relief of the poor. It Money in 
 
 appeared by the case, stated for the opinion of the court fuuds “ 
 
 (1) Rex v. St. George Middlesex, being set forth in the report, the 
 9 East, 127. The clauses of the act not marginal abstract is inserted here. 
 
 of 
 
140 
 
 r 
 
 # % 
 
 0 fP> operty exempted by particular Statutes. 
 
 of king’s bench, that the appellant was assessed for 100L 
 stock, or personal property, charged upon her by a rate 
 for raising 137I. ns. iod. for maintaining the poor, made 
 by virtue of a local statute of the 10th of Anne, for 
 erecting a workhouse in Norw ich, for the better employ¬ 
 ment. and maintaining the poor there; under which act, 
 the churchwardens and overseers of the poor of the said 
 parish, were, according to the directions and w r ords of 
 the said act of parliament, authorized and required “ to 
 rate and assess the said sum (of 137I. 11s. iod.) on the 
 inhabitants, and on every parson and vicar, and on all 
 and every the occupiers of lands, houses, tenements, 
 tithes impropriate, appropriations of tithes, and on all 
 persons having and using stocks and personal estates in 
 the said parish (of St.John’s Maddermarket), or having 
 money out at interest , in equal proportion, as near as may 
 be, according to their several and respective values and 
 estates.” And, on hearing the said appeal, it appeared 
 to the said court, that ever since the passing said statute, 
 lands, houses, tenements, stocks, and personal estates, 
 within the said city and county, and money out at interest, 
 as w r ell without as within the said city and county, of the 
 respective inhabitants within the several parishes of the 
 same, have been constantly assessed to the poor’s rates, 
 according to the circumstances of such inhabitants. That 
 the appellant had not any stock or personal estate in the 
 said parish of St. John’s Maddermarket, or in any other 
 parish or hamlet within the said city and county of Nor¬ 
 wich, nor had any money out at interest on real or personal 
 security; but that she was possessed of money vested in the 
 public funds , or on government security, and then stand¬ 
 ing in her name in the books of the governor and com¬ 
 pany of the bank of England in the 5 per cent, bank an¬ 
 nuities : and, therefore, the appellant admitted, that the 
 said assessment w r as just, if the said last-mentioned money 
 was liable to be rated. The court of quarter-sessions 
 
 12 being 
 
V 
 
 Of Property exempted by particular Statutes. 141 
 
 • * 1 , 
 
 being of opinion, that money vested in the public funds, 
 or on government security, was not by virtue of the 
 aforesaid act liable to be rated to the relief of the poor, 
 allowed the appeal. The court of king’s bench were of 
 opinion, that government stock was not money out at 
 interest, within the meaning of this local statute, and 
 therefore not taxable under it; and also, that it was not 
 taxable under the 43 of Eliz. not being local visible pro¬ 
 perty within the parish. (1) 
 
 (i) Rex v . St. John’s Madder- be taken for granted, that personal 
 market in Norwich. Hit 45 G. 3. estate in the public funds is liable to 
 But according to the report of Rex v. be assessed to the poor-rate. 
 
 Clerkeuwell, Foley, 15. it appears to 
 
 * 
 
( ! 4l ) 
 
 Of parochial 
 ability. 
 
 Personal la¬ 
 bour ex¬ 
 empt. 
 
 r 
 
 i 
 
 CHAPTER VIII. 
 
 Of the Hateahility of Personal Property. 
 
 r J'TIE statute makes no specific mention of any other 
 kind of property than those which are treated of 
 in the foregoing chapters. But as it requires that the 
 several inhabitants should be taxed according to the ability 
 of the parish, it renders them liable to the extent of 
 that ability, however constituted (i). The pecuniary 
 funds, or ability of the inhabitants, when referred to 
 their sources, are divisible into three kinds : i st, What 
 arises from real property. 2d, What arises from capital 
 stock, or as it is here called, personal property. And, 
 3d, The produce of personal labour, or in other words, 
 44 what arises from the ingenuity of a man’s head, or the 
 44 work of his hands (2)*” The resolutions of the judges 
 already cited, by deciding that the tax is upon the person 
 in respect of his local and visible, real and personal pro¬ 
 perty (3), excluded the produce of personal labour, as a 
 direct object of assessment. Their opinion seems to have 
 been framed upon the system of taxation by subsidy, 
 which was in use at that time. A subsidy being a tax 
 not immediately imposed upon property, but upon per¬ 
 sons in respect of their estates (4), 44 which was to be 
 44 levied of every subject of his lands or goods, after the 
 
 (1) Lord Kenyon expresses it thus: 
 “ The legislature intended that when 
 <c rates are made for the relief of the 
 “ poor, every person should contribute 
 “ according to the benefit which he 
 “ receives ip the parish.” Rex v. 
 Carlyon, 3 Term Rep. 385. See also 
 Rex v. Jones, 8 East, 423. 
 
 (a) Per Willis, J. Atkins v • Davis, 
 Cald. 334-, and Boiler, J. Rex v. 
 Hogg, lb. 275. 
 
 (3) Per Lawrence, J. Rex tv 
 S t. John’s, Maddcrmarket, 6 East, 
 182. ante. 
 
 (4) 1 Black. Comm. 310. 
 
 “ rate 
 
Patcability of Personal Property, 
 
 i ' 1 w . 
 
 64 rate of 4s. in the pound for lands, and 2s. and 8d. for 
 “ goods; and for aliens, for goods, double.” (1) 
 
 Lord Mansfield was of opinion, that the words of 
 the 43 Eliz. considered merely of themselves, would bear 
 a more extended construction than has been given to 
 them, if they had not been explained and narrowed by 
 usage. 44 The words of the statute,” said he, 44 are very 
 44 loose and very general, and they may be construed in- 
 44 to any latitude; even to make all a man has, and all a 
 64 man gets in any way, the measure of his ability : for 
 44 truly and substantially it is so; but usage has ex- 
 44 plained it and narrowed it. I know nothing of any 
 “ usage that says, a man shall pay according to his abi- 
 44 lity, in the obvious common sense of the word, i, e, all 
 44 he gets or makes by his efforts or abilities. If this were 
 44 the rule, every profession would be liable to be taxed 
 44 for all they get upon an average.” If we don’t find it 
 there (i. e. in the usage), 44 I know nothing in the words 
 44 of the statute to prevent taxation being carried to that 
 44 extent.” (2) 
 
 Sir Anthony Earby’s case is reported in the ninth year 
 of Charles I. and the resolution of all the judges, upon 
 which it is founded, was some time previous. Nothing 
 entitled to the name of usage could have sprung up be¬ 
 tween the 43 of Eliz. and the date of the report (3); 
 and this opinion of the learned judges, to which he 
 leaned with peculiar predilection (4), has been over¬ 
 ruled. (5) - 
 
 ( x ) 4 Inst. 33. See als6 Rastall’s 
 Abridg. tit. Taxes, Tenths, Fifteenths, 
 Subsidies,&c. There is however, this 
 difference established at least by sub¬ 
 sequent determinations : that in a subsi¬ 
 dy, the tax was imposed on the supposed 
 value of the goods; in a poor rate,it is 
 tail! upon the proSt which they yield. 
 
 (2) Atkins <v. Davis, Cald. 336. 
 
 (3) See also case of St. Leonard’s, 
 Shorediich, 2 Salk. 483. 
 
 (4) See 1 Bott. 132. PI. 168. lb. 
 155. PI. 178. lb. 162. PI. 183. 
 
 ( 5 ) lb. 151. PI. 176. Ib, 208. 
 PI. 205, Sec. Cald, 315, 326. 
 
144 - 
 
 Salaries not 
 rateable. 
 
 Personal 
 
 property- 
 
 rateable. 
 
 Stock in 
 trade, ships, 
 &c. 
 
 Rateability of Personal Property. 
 
 But his opinion, that the profits of personal labour are 
 not rateable eo nomine , or at the moment in which they 
 are made, is confirmed by several decided cases. v i) 
 
 Thus the fees of a physician or lawyer are not made 
 liable by the act, and therefore cannot be rated (2); an 
 officer in the salt office (3); or in the customs (4); a cap¬ 
 tain in the navy, or merchant’s service (5); and a clerk to 
 a merchant (6), have been held not rateable for their re¬ 
 spective salaries (7); nor an attorney for the profits of his 
 profession (8); nor a silk throwster for the profit he makes 
 by cleaning and throwing his employer’s silk (9); for it 
 would be to tax labour, and not pecuniary ability. 
 
 As it was unusual to assess personal property for near 
 two centuries subsequent to the statute, the court felt 
 considerable reluctance to decide upon its rateability, not 
 withstanding Sir Anthony Earby’s case. Such an uni¬ 
 versal agreement to omit, was considered as strong evi¬ 
 dence to shew the impossibility of rating it. But, it was 
 at length held to be clearly rateable for its profits where 
 they can be ascertained, and a mandamus was granted to 
 compel the justices to assess it (10). A clothier, there¬ 
 fore (11), a draper or shopkeeper (12), and a merchant 
 (13), are rateable for their stock in trade; a butcher for 
 
 (1) Per Buller, J. Rex v. Hogg, 
 Cald. 275. Per Lord Mansfield, Rex. 
 v. Andover, Cowp. 550. 
 
 (2) Per Lord Mansfield, C. J. 
 Governor and Co. for smelting Lead v. 
 Richardson, 3 Rurr. I 34 1 2 3 4 5 6 7 * 1 Black. 
 Rep. 349. Rex <v. Shalfleet, post. 
 
 (3) Rex v. Shalfleet, Const. I 3 ^» 
 PI. 71. 2 Burr 2011. S. C. 
 
 (4) Rex *y. White, 4 Term Rep. 
 
 77 1 * 
 
 (5) Ibid. 
 
 (6) Ibid. 
 
 (7) Rex v. White, 4 Term Rep. 
 77 1 * 
 
 (8) Rex v. Startifant, 7 Term 
 Rep. 60. 
 
 (9) Rex v. Sherborne, Trin. 47 
 G. HI. 8 East, 537. 
 
 (10) Rex v. Canterbury, 1 Bott, 132. 
 PI. 167. Rex v. Whitney, lb. 134. 
 PI. 170. and in Rex v. Barking, it 
 was decided that a tradesman was 
 rateable for his stock in trade. 2 Ld. 
 Raym. 1280. 
 
 (11) Rex v Hill, Cowp. 6 i 3 » 
 
 (12) Rex-y. Andover, Cowp. 55 °* 
 
 (13) Rex v, Mast, 6 Term Rep, 
 154 . 
 
 
 I 
 
 capital 
 
Patcability of Personal Properly. 
 
 capital employed in his business (i). The owners of ships 
 are, when resident, rateable to that parish in which the ships 
 lie, if the port is their home (2). In one case the court 
 seemed of opinion, that the stock in trade of a brewer was 
 not rateable (3); but this was before the general question 
 respecting the rateability of personal property was deter¬ 
 mined ; the decision turned upon another point, and as 
 there is 110 principle upon which it is to be distinguished 
 from any other stock in trade yielding profit, it has since 
 been decided to be rateable. (4) 
 
 ’ 1 
 
 Though the profits of labour are not immediately rate¬ 
 able, yet, when the produce has accumulated, and is 
 vested in property that is liable, 'it is of course to be as¬ 
 sessed ; for the court cannot go into the enquiry whether 
 such profits were the profits of a trade or a profession, or 
 how they were acquired; the question whether rateable 
 or not, must depend upon the form that has been given 
 them, the thing that visibly exists. Thus, fishermen are 
 not rateable for the fish caught; but if they pay tithes to 
 the clergyman, whose profit is certain, and who runs no 
 risk, these tithes have assumed a new shape, and are, as has 
 been already observed rateable under the statute. (5) 
 
 (1) Rex v. Rodd, Cald. 147. (5) See Rex v. Mast. 6 Term Rep. 
 
 (a) Rex v. White, ut supra. S. P. 154. Per Buller, J. Rex v. Hogg, 
 in the case of the packet boats carry-. Cald. 275. Rex**/. Carjyon, 3 Term 
 ing the mails and passengers between Rep. 385. Upon this principle it may 
 Holyhetd and Dublin. For the pos- happen that property which is exempt 
 session of such a vessel within the pa- from being the specific subject of rate 
 rish by an inhabitant actualy residing by 43 Eliz. such as timber when se* 
 there and making profit cf it, consti- vered, the ore of lead mines, &c. may 
 tutes so much of his local ability to become liable to asseisment where it is 
 contribute to the maintenance of the part of the loc^l visible personal ability 
 poor of the parish. Rex v. Jones, Trin. of an inhabitant. See the observations 
 47G. III. 8 East,452. of Lord Mansfield, C. J. The Smelting 
 
 (3) Rexi/. Ringwood, Cowp. 326. Company v. Richardson, 3 Burr. 1321. 
 
 (4) Rex -r. Mast. 6 Term Rep. Rex v, Shalfleet, ante, 144. (3). 
 
 154. Rex v. Ambleside, Mich, 53G.3. 
 
 16 East- l y • 
 
 voL. 1. x A difi 
 
 \ 
 
 MS 
 
 Profits df 
 labour when 
 rateable. 
 
 ( 
 
i^6 
 
 Of rateable 
 property 
 which is 
 doubtful, 
 whe her to 
 be classed as 
 real or per¬ 
 sonal. 
 
 Reasons for 
 this distinc¬ 
 tion. 
 
 Mateability of Personal Property. 
 
 A difficulty, however, remains behind, even where 
 the subject of the rate is clearly rateable. If the proprie¬ 
 tor does not reside in the parish, it becomes necessary to 
 decide upon the class of property under which the thing 
 sought to be taxed should be ranked, in order to ascertain 
 whether it can be rated at all (i). Also if he does reside, 
 most parishes have confined themselves to rating real pro¬ 
 perty, and the judges seem inclined to approve their con¬ 
 duct (2). Where this mode is followed, it becomes 
 necessary to determine, whether a particular subject is 
 real or personal property, in order to decide whether it 
 shall be assessed with the first, or stand exempt where 
 the second is exempted. Further, where personal pro¬ 
 perty is rated, the assessment upon real and personal 
 estate is subject to very different deductions, and there 
 fore the particular nature of each subject assessed must 
 be ascertained, in order to settle the deduction that is 
 to be made from it. (3) 
 
 The court of king’s bench will not entertain this ques¬ 
 tion, unless expressly stated for their opinion. They de¬ 
 cide, whether the property set forth in the case is in its 
 nature rateable; but without reference to the fact, 
 whether property of the same species, in the hands of 
 other persons, is included in the rate, for that relates 
 merely to the quantum of the assessment, which the ses¬ 
 sions, acting in the nature of a jury, are more competent 
 to determine. (4) 
 
 (1) Ante, chap. vi. Rex */. Liver- Rep. 709. S. C. Rex v. Ringwood, 
 pool. 8 East, 455. (d). Rex v. Col- Cowp.326. iBott,i 44 * PI. 173. 
 linson, Ib.457. Rex v. Howard, lb. (3) See post. chap. xii. 
 
 458. The opinion of Lawrence, J. (4) Rex v. Hogg, 1 Term Rap. 
 Rex v. Jones, Ib.458. post. 721. As' to how far the court feel 
 
 (a) Rex v. Canterbury, 4 Burr, themselves'concluded by the statement 
 4290. Rex v. Whitney, 1 Const, of the case, respecting the rateability 
 * 141. PL 176. j Burr. 4634. a Black, of personal property, see post. chap. ix. 
 
 sect. 3. 
 
 J 
 
pr. 
 
 ✓ 
 
 ( ‘47 ) 
 
 CHAPTER IX. 
 
 O/ - the Rateable Occupier of reed Property. 
 
 ♦ * 
 
 SECT. I. 
 
 O/* the Occupation. 
 
 X HE thing rated must be actually occupied, not only 
 because the statute in cases of real property directs 
 the tax to be laid upon the occupier; but because other¬ 
 wise it yields no profit to lay the rate upon. Thus, if an 
 house be untenanted, and kept shut up without being put 
 to any use, it is not rateable. 
 
 In strictness the rate should be imposed upon the occu¬ 
 pier, and no other person; who regularly should be nam¬ 
 ed in the rate (i); if laid upon the landlord instead of 
 those who are in possession, it is bad (2), even though he 
 has covenanted with the tenant to pay the tax for him. (3) 
 
 In examining the subject it is necessary to consider un¬ 
 der what circumstances a person becomes a rateable oc¬ 
 cupier ; for if no person can be found to answer that de¬ 
 scription, no rate can be made. (4) 
 
 (1) Per Lord Mansfield, Rex v. person, unless he can shew himself 
 St. Luke’s, post, (a) damnified thereby, except the person 
 
 (a) Milward v. Caffin, a Black, who ought to be rated, can take advan- 
 *333 Rex v. Southwark, a Str. 745. tage of this objection. See Rex v. 
 Per I.ord Mansfield, C. J. Rex <v. St. Thomas Brown, Trin. 47 G. III. 
 Luke s, a Eurr. 1053. Rex v. Gars}- 8. East, 538. 
 
 ner, Cowp. 79. p er L or d Kenyon, (3) A rate on the occupier was 
 C. J. Rex <y. Parrot,5 Term Rep. 513. held good under these circumstances. 
 Per Eyre, C. J. Lord Bute v. Grin- Rex x. Hogg, Cald. a74, 1 Term 
 
 daU, 1 Term Rep. 338. a H. Black. ' Rep. a7i. 
 
 267. Per Buller, J. Rex*!/. Llanga- (4) Per Lord Alvanly. In Hol- 
 march, a Term Rep. 6 a 8 . But no ford v. Copeland. 3 Bos. & Pul). 141* 
 
 L 2 With 
 
 1. It must 
 be occupied. 
 
 Occupier 
 
 rated. 
 
 Occupier, 
 who ? 
 
14 $ 
 
 Occupation 
 of houses, 
 &c. 
 
 Of the Occupation 
 
 With, respect to the mere fact of occupying corporeal 
 hereditaments, the possessor lieed not be in the habit of 
 using every part of the house to render him liable to an 
 assessment for the whole. Where a gentleman purchased 
 a house of the value of 24I. a year, the keys of the house 
 always remained in his custody, and frequently, for 
 amusement, he used a throw or lathe, and other turning 
 instruments in one of the rooms 5 he had a table and thiee 
 chairs there, and now and then a fire, but no other house¬ 
 hold furniture in the house; he kept corn for his horse 
 in another room, and occupied the garden, keeping a 
 gardener to take care of that and anothci gaiden, who 
 sometimes put his flower pots, shrubs, &c. and some of 
 his working tools into another part of the dwelling house; 
 where lumber belonging to him was also put by his 
 servants; but no person ever slept or lodged in the dwel¬ 
 ling house, except a poor person whom he permitted to 
 live rent-free in the kitchen, the communication being 
 stopped up between it and the remainder of the house. 
 The court were of opinion, that he occupied the whole 
 house, and was properly rated for the whole. (1) 
 
 A surgeon of militia was occasionally absent fiom home 
 and left an assistant in part of his house, his wife and 
 daughter also being absent; and the assistant had only the 
 use of the shop, the remainder of the house being com¬ 
 pletely parted from it. The garden was taken care of 
 by a person paid by the appellant and his furniture con¬ 
 tinued in its usual situation in all the rooms ready for the 
 family’s reception during the whole time, and the person 
 with whom the key was left, permitted a friend of the ap¬ 
 pellant’s and her servants to reside there for two months 
 while the family was away. He was held rateable as be¬ 
 ing the occupier of the whole house during the period of 
 
 his absence. (2) 
 
 (1) Rex v . St. Mary the Less, (z) Rex v. Aberystwith, 10 East, 354- 
 
 4 Term Rep. 477* < r. 
 
of real Property . 
 
 It was found that the mayor, aldermen, and burgesses 
 of a borough, were the owners of a large tract of land 
 within the borough, used as a common of pasture, and 
 stocked by the resident burgesses, in right of their 
 burgherships, according to a stint annually fixed by the 
 leet jury, who are burgesses of the borough, under the 
 control of the mayor for the time being. That of the 
 resident burgesses, who have rights of common, some 
 stock to the full of their rights, others partially, and 
 some not at all, and that those who do not stock receive 
 an annual payment of 19s. 4d. from those who do. It 
 was held, upon this statement, that this Js not properly 
 a right of common; and that the corporation are the 
 owners in fee, but not the occupiers of the land; and 
 the burgesses who turn out stock are the occupiers, as 
 tenants in common, who may each maintain trespass for 
 an injury done to his occupation in common, and who 
 are rateable for it to the poor. (1) 
 
 In this case each of the burgesses was in possession of 
 a distinct interest, and their respective portions were as¬ 
 certained, and the corporation would not take in the 
 cattle of a stranger. These circumstances distinguished 
 it materially from the following determination. 
 
 The 48 Geo. 3. vested the aftermath of a large mea¬ 
 dow in trustees, in trust for the burgesses, and principal 
 householders of Tewksbury, freed from all other interest 
 in the same, with power to let the whole or any part or 
 parts annually for the best rent, and also to let it in pas¬ 
 tures for horses, cattle, and sheep, to different persons, 
 at such rates, and subject to such regulations as the 
 trustees should appoint, or by writing under their hands 
 and seals to demise the same for a term of years, &c.; 
 
 . • N . , • * » 
 
 (1) Rex v. James Watson, Mich. G. III. 5 East, 480. See also Re* v. 
 Aberavon, 5 East, 453. 
 
 L 3 raid 
 
 149 
 
 \ 
 
 Burgesses 
 stocking a 
 common. 
 
i -o Of the Occupation 
 
 and that the rents and profits should, after payment of 
 all charges* be divided by the trustees among the ob¬ 
 jects of the trust. The trustees not being able to let 
 this aftermath together for its value, let it out in pas¬ 
 tures at a certain sum per head, for horses, cattle, and 
 sheep, to various persons who enjoyed the same by turn¬ 
 ing their cattle out, and the trustees did not occupy it 
 unless such letting and enjoyment in pursuance thereof 
 amounted to an occupation by them. The court were 
 of opinion, that as the letting was at so much a head, 
 without any definite time, and the persons whose cattle 
 were taken in had no definite portion of the aftermath 
 let to them, and as the trustees were not bound to limit 
 the number of cattle, they were to be deemed the occu¬ 
 piers, and were properly rated as such. (i) 
 r :% 
 
 Of incorpo- When the thing is from its nature incapable of bodily 
 real heredi- possession, as in the ca^se of incorporeal hereditaments, 
 such as tolls, the receipt of the profits is the occupancy, 
 which subjects the party to the rate. (2) 
 
 Therefore the herbage and pannage of a park belong¬ 
 ing to the ranger, which is (as we have seen) a right or 
 privilege to take by his beasts and swine, the surplusage 
 of the feed and mast, over and above a sufficient pasture 
 and feeding of the game, is not rateable when he does 
 not put cattle and swine in to take it; because they yield 
 no profit, by the taking of which the right can be alone 
 occupied (3). It would seem also, that where the ran- 
 
 (1) Rex v. Trustees for the Bur¬ 
 gesses, &c. cf Tewksbury, 13 East, 
 * 55 - 
 
 {2) In the case of tolls, it is not he 
 -who pays, but he who receives the 
 tolls that is rated. Per Buller, J. 
 Rex v. Jolliffe, 2 Term Rep. 90. See 
 ante, 120. 
 
 (3) LordJBute v, Grindall, 1 Term 
 
 Rep. 338. It is not settled whether 
 herbage and pannage are rateable at 
 all, the judges having differed upon 
 that question. Jones v. Maunsell, 
 Doug. 302. iBott, 157. PL i8i,ante. 
 But the judges, both in B. R. and the 
 Exchequer Chamber, were clear that 
 it should not be rated on the above 
 ground. 
 
 aer 
 
of real Property. ^ 1 5 * 
 
 ger is entitled to put beasts upon a certain part of the 
 land in the king’s park laid open to the park pasture, 
 that he is not liable to be rated for it if he has not re¬ 
 ceived any profit at all from thence. But upon this point, 
 the judges gave no opinion. (i) 
 
 Where the parson lets his tithes to the tenant of the Tnbes,wh« 
 land from whom they are due, it seems that the former 
 is to be considered as the occupier, and rated to the 
 poor as such. For it has been observed, that the letting 
 is but an agreement with the tenant of the land to re¬ 
 tain the tithes, and he is to be considered either as a 
 person who buys them, or as one excused from paying 
 any, and the clergyman continues occupier in point ol law. 
 
 When the parson or his farmer receives a sum of money 
 in lieu of tithe, that is in law a receipt of the tithe, with 
 this only difference, that it is not tithe in kind. In the i 
 case of a composition, as this is, or a modus, it was 
 never thought but that the parson was occupier of the 
 tithe, there being no colour to charge the tenant of the 
 land. (2) 
 
 Also if one farms the parson’s tithes, and agrees by 
 parol with the tenant of the land that in consideration of 
 his paying so much, he shall retain the tithes for the 
 year (3), and gather in the whole crop without dividing, 
 this is not an underlease of a thing which lies only in a 
 grant, and the tithe farmer is the occupier to be rated, 
 
 and not the parson or tenant of the land. (4) 
 
 - , * * % 
 
 In order to constitute a rateable occupier, it is neces- The occupa- 
 sary not only that the person should have possession, but absolute. 
 
 (I) See 150. n. (3). relate to parol agreements from year 
 
 (a) Rex v. Bartlett, 17 Vin. Abr. to year without formal grant. 
 
 417. t& ex v ' Lambeth, Stra. 524. ( 3 ) See case of Lambeth as report- 
 
 Per Parker, C. J. Rex «/. Turner, ed Cas, Sett. & Rem. 104. PI- * 40 - 
 1 ®onst. 126. PI. i£$. This seems to (4) Rex v. Lambeth, ante, (a). 
 
i 
 
 15* 
 
 I 
 
 Of the Occupation 
 
 that he should have such a control and dominion over 
 the subject, as implies freedom from any paramount oc¬ 
 cupation, or direct interference by a superior with his 
 domestic arrangements and internal management; such 
 as a farmer enjoys over his farm, and the master of a fa¬ 
 mily over his house. Although, therefore, if' a tenement 
 be divided by a partition, and inhabited by different fa¬ 
 milies, the owner in one and a stranger in another, these 
 are several tenements, and severally rateable (1). Yet 
 no lodger, though possessing the principal part of the 
 house, was ever rated; but the owner, how small soever 
 the part reserved for himself^ is in the eye of the law' the 
 tenant for the whole, and is rated as the occupier. (2) 
 
 Therefore a a gentleman, having a coach-house or a laundry 
 
 not rateable, at a small distance from the mansion-house, permits 
 the coachman to live in one, and the laundress in 
 the other, they are not to be considered as occupiers of 
 ^ ort jj e ^ these tenements, so as to be rated for them (3). So a 
 of the Phi- woman v r ho covenanted with the Philanthropic Society 
 Society IC to become their servant in the capacity of matron or mis¬ 
 tress to superintend the children, at annual wages, to take 
 apprentices and instruct them; and to have a dwelling 
 free from taxes, with certain other perquisites: she had 
 no distinct apartment in the house provided by the society, 
 except a bed-chamber, and her family were not allowed 
 to live there ; and she w r as liable to be dismissed at a 
 month’s notice, or an allowance of three months’ w r ages 
 instead thereof. She is a mere servant in the house, and 
 as such is not liable to‘ be rated as occupier (4). Also a 
 person put into a free-school merely to look after the 
 pupils, and who does not occupy the house, is not rate¬ 
 able for it (5). Upon the same principle, servants at- 
 
 (1) Per Holt, C. J. Tracey v. Tal- ($) Per Lord Kenyon, Rex w. Field, 
 
 bot, Salk. 531. 5 Term Rep. 587. 
 
 ( 2 ) Per Buller, J. Rex v. Eyles, (4! Rex v. Field, ante, n. (3). 
 
 C2U. 414. See also Rex v. Watson, (5 ) Per Lord Kenyon, C. J. Rex v. 
 
 5 East, 480. Catt. post. 
 
 7 - . tending 
 
of real Property. ' 153 
 
 tending an hospital for the reception of lunatics, much 
 less the poor wretches who are the objects of the charity, 
 are not such occupiers as are intended by the statute. (1) 
 
 / ^ 1 
 
 Neither are the prisoners in the Fleet Prison consi- Nor prison- 
 dcred as such, although they pay a weekly rent to the no e r 
 warden (2). Nor are the soldiers living in a barrack. (3) soldiers. 
 
 Upon the same principle a poor person permitted to Person liv- 
 live rent free in the kitchen, the communication between -/^kitchen, 
 which and the remainder of the house was stopped up, 
 does not prevent the owner from being rateable as occu¬ 
 pier of the entire house. (4) 
 
 \ ' # 
 
 So also a servant at an annual salary, who residing in 
 two rooms within the walls of the light-house to take 
 care of the lights, his master being proprietor of the 
 tolls can not be rated for these as the occupier; it 
 is the occupation of his master. (5) 
 
 But where the head of the family possesses this right of But if the 
 control, he is to be considered as occupier, although he ^ ctu P atlutl 
 
 r 7 o 13 complete, 
 
 stands in the relative situation of servant to his landlord the occupier 
 in other respects. Therefore a keeper of the king’s park, though 
 appointed by the ranger to continue during pleasure, and servant; 
 occupying a lodge and two acres of land within the parish, ^ the king’s 
 in right of his appointment, is subject to the rate; for he fo £* us 
 occupies an house and two acres of land, and whether he 
 pay for them by rent or by service, can make no differ¬ 
 ence as to his being rated. K 6 ) 
 
 (1) Rex v. St. Luke’s Hospital, 
 2 Purr. 1053. 
 
 ( 2 ) Rex v. Eyles, Cald.407. Rex 
 t>. Donnovan, 2 Black. Rep. C82. Ca¬ 
 ses in Crown Law, 67. 
 
 (3) Per-Lord Kenyon, Lord Am¬ 
 herst v. Lord Somers, 2 Term Rep. 
 372. Rex v. Hurdis, 3 Term Rep. 497. 
 
 Eckersall v. Briggs, 4 Term Rep. 6. 
 Rex v. Terrott 3 East, 506. 
 
 (4) Rex v. St. Mary’s the Less. 
 1 Const. 206. PI. 203. ante, 148. 
 
 15 ) v. Tynemouth, i2East,46. 
 (6) Rex 1/. Matthews, Cald. 1. 
 Rex r v. Hurdis, ante, n. (3). Jones 
 v. Maunsell, Doug. 302. 
 
 \ 
 
 \ 
 
 Where- 
 
*54 
 
 Officers of 
 Chelsea 
 Hospital for 
 their apart¬ 
 ments. 
 
 College 
 porter, &c. 
 
 Joint oc- 
 •upiers. 
 
 Special 
 
 occupation. 
 
 Of the Occupation 
 
 » r » , - 
 
 Where the comptroller of Chelsea hospital, or officer* 
 of that or other charitable foundations, have large dis¬ 
 tinct apartments appropriated to the use of their re¬ 
 spective offices, where they and their families reside, they 
 are to be charged not as servants of such hospitals, or as 
 inhabitants and occupiers of the ordinary rooms and 
 lodgings, but as having separate and distinct apartments, 
 which are considered as their dwelling-houses. (i) 
 
 So the porter and butler of a college are rateable for 
 their dwelling-houses erected for them by and belonging 
 to the college, if they have the entire use of them with¬ 
 out the college’s intermeddling therewith. (2) 
 
 But a distinction is to be taken between possession, 
 subject to the control of a superior, and a joint enjoyment 
 of an undivided property, where all must be considered 
 as rateable occupiers. (3) 
 
 A further difference arises also between subordinate 
 possession and a special occupation, the latter being liable 
 
 to assessment. 
 
 An occupation may be considered as special, when 
 one person occupies so far as to receive immediately some 
 particular profits, for which no other person is rateable 
 as occupier, although he has to a certain extent possession 
 of the subject from which they issue for other purposes. 
 
 Thus the warden of the Fleet is rateable for that part 
 of the prison which he lets out in rooms to his prisoners 
 at a weekly rent, although the rooms are in the prisoners’ 
 actual possession (4). The corporation of London was 
 held rateable for the tolls of the barge way, of which 
 the herbage and pannage was demised to a lessee who was 
 
 (1) Ayre v. Smallpiece, lb. 126. (3) Rex v. Munday, 1 East, 584. 
 
 lb. 19a. Rex v. Watson, 5 East, 41. 
 
 {%) Rex v . Gardner, Cowp. 81. (4) Rex v. Eyles, Cald. 407. 
 
 rated 
 
of real Property . , *55 
 
 / ^ • 
 
 jated for them (i). The lessee of the lot and cope of a 
 lead mine is liable, although the mine itself is in the pos¬ 
 session of those who work it, and who are not subject to 
 the tax (2). As is also the proprietor of the dues called 
 toll and farm tin (3}. The lessee of lot, toll, and free- 
 share of calamine(4). So the ranger of a park is assess¬ 
 able for his share of the profits of the land; yet the 
 crown, who permits a sort of community of possession as 
 to the usufruct is exempt from assessment. (5) 
 
 But if the tenant sells his whole crop standing, he is 
 rateable notwithstanding as the occupier of the land (6). 
 
 So if he sells underwood he is to be assessed, and not 
 the vender who grubs them up. (7) 
 
 The cases which have been already alluded to (8) of distinct 
 shew, that it is not every species of distinct occupation occu P atlon * 
 which is in the nature of a sub-tenantcy, that should 
 in policy and convenience be made the subject of a 
 distinct assessment, although it might be so assessed, if 
 the parish officers should deem it expedient, or the parties 
 rated should prefer it. Thus the occupier of a farm, who is 
 possessed of considerable meadows, may sometimes un¬ 
 derlet them in small portions to tenants to take the crop, 
 or he may let the aftermath to different persons in joint 
 tenancy, or a gentleman may demise part of the produce 
 of his garden to certain persons. But great inconvenience 
 and injury would arise not only to the person occupying 
 land in this way, but to the parish, if these tenements 
 should be assessed distinctly, instead of comprehending 
 the whole in one entire rate upon the principal occupier 
 
 (1) Rex •v. Mayor of London, (5) Lord Bute v. Grindall, 1 Term 
 4 Term Rep. 21. Rep. 338. 2 Hen. Black. 267.' 
 
 (a) Rowls v. Gells, Covvp. 451. (6)Rex<y. Lambeth, 1 Str.525. 
 
 (3) Rex v. St. Agnes, 3 Term (7) Ibid, and see ante, 152. and the 
 
 Rep. 480. cases there cited. 
 
 (4) Rex v. Baptist Mill Company, (8) Ante, 152. etseq. 
 ante, 86. (1). 
 
 of 
 
 \ 
 
Of the Occupation , tyc. 
 
 of the premises (i). Upon this principle the court seemed 
 of opinion that a dairy-man who rented a farmer’s cows, 
 
 under 
 
 (i) Per Cur. Rex v. Thomas 
 Brown, Trill. 47 G. III. 8 East, 528. 
 
 The occupiers of several farms who 
 are rated to the poor for their respec¬ 
 tive farms, let their cows to an under¬ 
 tenant called a dairy-man, at a certain 
 rent per cow, which cows, by the 
 agreement, are exclusively depastured 
 on different grounds belonging to the 
 occupier of the farm at different times 
 of the year; he being obliged to feed 
 and maintain them without any ex¬ 
 pence to the dairy-man. The dairy¬ 
 man makes a profit of such cows in¬ 
 dependently of the profit made by the 
 tenant of the farm. 
 
 .Lord Ellenborough, C. J. “ The 
 appellant complains of the rate without 
 shewing any grievance; because the 
 farmer having been rated as we must 
 presume for the full profits of the 
 farm, it matters not to the appellant 
 whether or not the rate in respect of 
 that farm could have been better dis¬ 
 tributed by laying one portion of it on 
 the farmer and another on the dairy¬ 
 man ; the appellant’s proportion of the 
 rate would remain the same in either 
 case. It is said that the interest which 
 the dairy-man takes under such an 
 agreement is a tenement in law, and 
 gives him an interest in the land, by 
 which he may gain a settlement: and 
 that I do not dispute : and therefore 
 if the dairy-man, considering him and 
 not the farmer as the occupier of so 
 much of the farm as the cows were 
 depastured upon, and had been rated 
 as such for it, I do not see what ob¬ 
 jection could have been made. But 
 here the objection is that the farmer 
 is rated for the whole farm, the profits 
 *>f which arise principally from the 
 
 stock upon it; and a part of these 
 profits are again required to be sub¬ 
 jected to another rate in the hands of 
 the dairy-man. But there is no ob¬ 
 jection to the rate as it now stands; 
 and great inconvenience would ensue 
 if the profits of different persons out 
 of the same farm were subdivided, and 
 a proportionable rate laid upon each 
 instead of one general rate for the 
 whole on the occupier of the whole. 
 A farmer may make a bargain with 
 one man to let him a field of grass to 
 rent, or he may let the aftermath of 
 his meadows, some to one, and some 
 to another; and this may not only 
 vary every year, but every month or 
 oftener in the neighbourhood of popu¬ 
 lous towns. These are substantially 
 the tenants of the lands, while their 
 subordinate interests subsist, and 
 might be rated for it during such 
 holding, but if there be one general 
 rate made on the general occupier of 
 the whole farm, including all these 
 particular profits and subdivisions of 
 interests by which in fact he is bene¬ 
 fited, who can say that he is injured 
 by the rating of one for the whole, 
 rather than the several tenants of those 
 partial interests, for their respective 
 proportions, deducting the value of 
 them from the rate upon the general 
 occupier ? As to the convenience of 
 the general rate for the whole there 
 can be no question of it. Other cases 
 may be put. The owner of a house 
 and garden may let the profirs of his 
 garden to his gardener, retaining the 
 use of it in other respects upon con¬ 
 dition of the latter supplying his table 
 with certain articles, or upon a rent 1 
 and though the gardeoer might be 
 
 rated 
 
*57 
 
 Of the beneficial Occupation , SfC. 
 
 under an agreement that they should be depastured in 
 particular parts of the farm, ought not to be rated sepa- 
 ratelv, and that it was better to have one rate, tor the 
 entire profits of the farm, imposed upon the farmer him¬ 
 self. (i) 
 
 SECT. II. 
 
 Of the beneficial Occupation* 
 
 To constitute a rateable occupier, it is necessary not 
 only that there should be an occupation in fact, but that 
 it should yield some return, in the parish for which the , ■ < 
 rate is made, the assessment being made on the profits 
 of the subject assessed. (2) 
 
 Therefore the preacher of a meeting-house is not rate- Meeting 
 7 , , , , . houses, 
 
 able as the occupier, unless he lets out the pews so as to 
 
 ' reap a profit from it (3). Neither is an house converted 
 into a conventicle, and used for no other purpose, rate¬ 
 able to the poor’s tax (4). So where a quaker’s meeting¬ 
 house was solely appropriated to charitable and religious 
 purposes, the basement story being divided into a number 
 of small rooms; one occupied by a door-keeper, with a 
 small salary, payable out of the quakers’ donations; the 
 remainder by a number of their poor, who are likewise 
 maintained out of the same fund ; the meeting-house, or 
 upper part, being also appropriated solely to religious and 
 charitable purposes, no pecuniary advantage being made 
 
 rated for this interest, yet if the (i) Ibid, and see ante, 152.11.(1). 
 
 owner was rated for his house and (2) Lord Bute v. Grindall, 1 Terra 
 
 garden, what objection would any Rep. 338. 2 H. Black, 267. Per Bui- 
 other person make to the rate on that ler, J. Atkins v. Davis, Cald. 325. 
 account: the principle is that the estate (3) Rex v. Southwark, 2. Stra.743. 
 
 which has once paid shall not be made (4) Anon. 1 Hott, 119. PI. I 57 » 
 to pay again.” 
 
 thereof; 
 
• *5 8 Of real Property, 
 
 thereof; the court was of opinion, that neither the trus¬ 
 tees nor any other person was rateable, for there was no 
 occupier, nor any profit made of the premises. (i) 
 
 What profit Where a 
 
 the return is annual, and in a fixed unvarying pro¬ 
 portion (2); or whether it is uncertain in the amount, 
 and subject to risk and expence (3). But in order to 
 render the occupier rateable, it is not only necessary 
 that the thing should yield a profit, but that some emolu¬ 
 ment-should be derived from the occupation in a per¬ 
 sonal and private respect(4); and where such an oc¬ 
 cupier exist, the law looks to the productive value of 
 the thing as the fund to be taxed, without reference to 
 his beneficial share of it; for the tax is laid upon the 
 entire profit which the property yields, to whomsoever 
 payable. 
 
 Tenant who Thus, if a landlord makes a hard bargain with his 
 
 bargain, & c . ten ant, so that he derives no profit from his farm, the 
 tenant is notwithstanding rateable to the poor (5). So 
 where the lessees of a coal-mine paid as a rent one-sixth 
 part of the price of the coal raised from the mine, without 
 deduction of the expence of working, and incurred a loss 
 thereby. But they embarked in this losing adventure 
 knowingly, as the cheapest way of getting at their own 
 adjoining coal, when they had worked out this colliery 
 which they rented. The lessees were held liable to the 
 
 profit does exist, it is immaterial whether 
 
 (1) Rex v. Woodward, 5 Term kins v. Davis, per Buller, J. Cald. 
 Rep. 79. But it is otherwise when 325. Rexv. Alberbury, 1 East,534. 
 the surplus profits are applied to the Rex v. Woodland, 2 East, 164. 
 
 use of the preachers. See Rex v. (3) Ibid. 
 
 Agar, post, and the opinion of Lord (4) Per Lord Ellenborough, C. J. 
 
 Ellenhorough, C.J. upon this case, Rex v. Terrot, 3 East, 50^. post. 
 
 14 East, 263. (5) Per Lord Kenyon, C. J. arg. 
 
 (2) Jones v. Maunsell, Doug. 302. Rex <*>. Parrot, 5 Term Rep. 593. 
 Rowls <y. Gells, Cowp. 451. In At- 
 
 l6 
 
 rate, 
 
Charities , when rateable . 159 
 
 « * • * . 
 
 rate, for they are occupiers of rateable property yielding 
 a clear profit: the court cannot enquire whether the 
 tenant has made an unprofitable bargain. (1) 
 
 On the other hand, the lessee of a coal-mine was rated Lessee of 
 for a colliery as of the annual value of 200I. under the coaLm^nes. 
 following circumstances: He had taken a lease for a num- 
 ber of years, at a clear yearly rent of 200I. which he cove¬ 
 nanted to pay, whatever the state of the mines might be; 
 but the mine became exhausted and ceased to be worked 
 before the rate in question was made. "I’he court held 
 that he was not rateable. Lord Ellenborougli, C. J. ob¬ 
 served, that in Rex v. Parrot the subject matter itself was 
 profitable, and produced value to the owners, though the 
 immediate occupiers derived no profit from it, all the net 
 profits of the mine being absorbed by the sixth part of 
 the gross value which they had covenanted to pay to the 
 owners. But here as the mine is exhausted, the subject 
 matter of profit is gone, although the rent, which was 
 no doubt calculated upon the probable average produce 
 during the whole term, be payable. (2) 
 
 The operation of the two foregoing rules has given rise 
 to several decisions upon the rateability of real property m 
 the hands of particular persons, which have chiefly arisen 
 in the case of charitable institutions, and property occu¬ 
 pied for public purposes. If there is no beneficial occu¬ 
 pier for private emolument, the property is not liable to 
 assessment; but when such an occupier does exist, he is 
 rate* h\e, although the ultimate object of his occupation 
 be to promote a charitable institution or advance the 
 public good. 
 
 / 
 
 The rateability of property occupied for either of these 
 
 purposes seems governed by the same principles; it may . 
 
 • * ^ 
 
 (1) Rex_v. Parrot, ante, 158. (5). (a) Rex v. Bedvvorth, 8 East,387. 
 
 how- 
 
I 
 
 160 
 
 The trustees 
 of an hos¬ 
 pital ex¬ 
 empt. 
 
 Thefounder 
 •f a charity. 
 
 But being 
 occupied for 
 charitable 
 purposes, if 
 beneficial, 
 exempts not. 
 
 School¬ 
 master oc- 
 
 ChariticSy when rateable . 
 
 however render the subject more intelligible, if the de¬ 
 cisions upon each are separately classed. 
 
 4 ' , — 
 
 With respect to charities, it has been held that the 
 nominal trustees, or the governors ol an hospital are not 
 rateable for the hospital itself, although part of the area 
 or site had paid poor-rates before its appropriation to tire 
 present use. (i) 
 
 So where* Mr. Waldo provided an house previously 
 rated in the parish of M. and placed ten poor girls in it, 
 some being taken from the parish of M. and some from 
 other parishes, who were educated, maintained, and 
 brought up on this charity. He provided and paid a 
 woman as his servant, to superintend and instruct them 
 in reading and working, and qualify them lor service. 
 This woman and the children were the only persons resi¬ 
 dent in the house, which was solely appropriated to the 
 purpose, all vacancies being supplied from time to time 
 at W.’s discretion. Mr. W. was held not to be an oc¬ 
 cupier rateable for this house, for he makes no profit of 
 the building. (2) 
 
 - But the charitable purposes for which land is given in 
 occupation does not excuse an occupier who is otherwise 
 within the act. Land or houses granted to a charity, not 
 less useful than the maintenance of the parochial poor, 
 or even operating collaterally for their relief and assist¬ 
 ance, and so far applied in exoneration of the rate, are 
 notwithstanding liable. 
 
 / . • j 
 
 As where the master of a free-scliool was appointed 
 by the minister and inhabitants ot the parish under a deed 
 
 (1) Rex v. St. Bartholomew’s Hos- and see the o| inion of Lord Ellen- 
 
 pital, 4 Burr. 2405. Rex v. St. borough, C. T. upon this case, Rex v. 
 Luke’s, 2 Burr. JO53. Agar, 14 Eait, 263* post, 
 
 (2) Rex v. Waldo, Cald. 33$. ; 
 
 V 
 
 of 
 
Charities , when rateable. 
 
 i6r 
 
 <c 
 
 
 a 
 
 a 
 
 << 
 
 of indenture, whereby a house and garden were assigned occupying % 
 <s for the habitation of the master, and for the use of him 
 and his family freely, without payment of any rent, 
 income, gift, sum of money, or other allowance what¬ 
 soever, for or out of the same, which, together with 
 44 certain lands and annuities, were given for the teach¬ 
 ing of ten boys, sons of the meaner sort of the inhabi¬ 
 tants of the parishit was held, that the master being 
 found the occupier of the house and gardens, was rate¬ 
 able for them. For there is no exception of property 
 given for charitable purposes, in the act respecting the 
 relief of the poor. Lands appropriated for the establish¬ 
 ment, of the religion of the country, are, in one sense of 
 the word, lands given for charitable purposes; but par¬ 
 sonage houses, glebe lands, &c. are rateable in the hands 
 of the occupiers. (i) 
 
 So where Lord Rich, having founded a corporation in Beneficial 
 the parish of F. for the relief of the poor there, granted 0 CC "P iers of 
 to the corporation and their successors a messuage, twenty a charity, 
 acres of land, and four of wood; and appointed the mes¬ 
 suage for an alms-house for the dwelling and lodging of 
 five poor and impotent persons, with a grave woman to 
 attend them; the said six persons to have freely, during 
 their lives, by the permission of the corporation, their 
 dwelling chambers and lodgings in the said alms-house, 
 with the hall, kitchen, buttery, cellars, barns, and all 
 profits and commodities to the said alms-house belonging; 
 and also that the said corporation should permit them to 
 have and occupy the said land for their cattle, and a rood 
 of wood each year for firing; the persons elected, in 
 case of non-conformity to the regulations of the charity, 
 being liable to be put from his or her room and place, 
 lodging and living, &c. as if the party so refusing were 
 dead. Six persons who had not been previously pa- 
 
 (i) Rex v. Cat*:, 6 Term Rep. 33s, 
 
 M 
 
 VOL. I. 
 
 rishioners, 
 
jfa Charities, , when rateable , 
 
 / 
 
 rishioners, where the premises lay, possessed the said mes¬ 
 suage, land, and wood, being of the annual value of 15I. 
 which were never rated before; keeping up a stock of 
 cows according to the founder's directions, and paying a 
 labourer for making their hay and cutting their wood, 
 both of which they disposed of to their own use. The 
 visitor of the said alms-house having frequently granted 
 them additional relief. The king’s bench was of opinion, 
 on a case stated by the sessions, that they are liable to 
 , assessment, if the parish officers think it prudent to rate 
 
 them. For the property comes within the general de¬ 
 scription of rateable property in the statute; and these 
 persons ploughing, sowing, and reaping for their own 
 benefit, have every sort of occupation which any other 
 person can have, and the smallness of the benefit cannot 
 constitute an exemption, (i) 
 
 Nor appli- Upon the same ground, the application of the rent 
 cation of the pgjj |-,y the occupier to charitable purposes does not 
 
 St exempt him, although his liability must necessarily di¬ 
 minish the amount of the fund which is to be so applied. 
 Thus hospital lands are rateable in the hands of a bene- 
 ficial occupier. (2) 
 
 Chapel. 
 
 ✓ 
 
 A private building always used for the performance of 
 divine service according -to the rites of the church of 
 England, and by covenant between the lessor and lessee 
 never to be used for any other purpose , is rateable m the 
 hands of the lessee who lets the pews and receives the 
 rent thereof for his own use and benefit, although the 
 rent paid by him had always been applied to the public 
 and charitable purposes of another parish. 
 
 Some stress seems to have been laid in this case upon 
 the building not being a chapel or consecrated place, but 
 
 (0 Rex v. Munday and others, (a) Anon. % Salk, 526. 
 
 ^ g Rex v. Gardner, Cowp. 79* 
 
 • a mere 
 
 ( 
 
Charities , xsohep, rateable. 
 
 a mere private room let out for the purposes of religious 
 worship, which the owner might apply at his pleasure to 
 any other use, inasmuch as the restriction by covenant 
 could not vary the nature of the property. Mr. Justice 
 Buller however intimated a strong opinion, that a mem¬ 
 ber of the established church, parson, or vicar, who has 
 the profits of the pews of his church given him by the 
 Parish, in increase of his benefice, is rateable for such 
 profits, (i) 
 
 The trustees of a Methodist chapel, in whom the fee 
 was vested, and who let out the pews for an annual rent, 
 were held rateable for the chapel though they expended 
 more than the annual rent in supporting the establishment, 
 in the repairs of the chapel, in paying salaries to the at¬ 
 tendants and ‘singers, and providing a house and board 
 for the Methodist preachers who officiated there. For a 
 profit is made of the property to the full by the trustees, 
 who are the occupiers, and let out the seats and receive 
 pecuniary advantage from the use of them. And ad¬ 
 mitting that there must be some expences incurred in 
 producing the profits, it depends upon circumstances, 
 and the mode of administering the fund, what that profit 
 shall be; or in other words, upon the manner in which 
 the trustees choose to apply the proceeds. Then, as it in 
 fact produces profit which the trustees afterwards dispose 
 of as they please, the case does not differ from that of 
 other buildings which produce profit. (2) 
 
 (1) Robson v. Hyde, Cald. 3*0* for they hand over to them so much as 
 
 (i) Rex <*/. Agar, 14 East, 336. remains, after defraying the expences. 
 
 “ Thls is in substance a rate on the The trustees must therefore he ccn- 
 ministers, for if they had let out the sidered as the occupiers, because the 
 pews and received the rents, they property is in them, and they let out 
 xv on Id only have received the surplus the pews, and they are therefore rate- 
 profit a.ter payment of all the neces- able for the profits in the same tnan- 
 sary expences.of the chapel : but the ner as ministers would be if they let 
 pews are let cut by those who are in out the paws. Per Le Blanc J. ibid, 
 effect the trustees for the ministers, 
 
 M 2 The 
 
 1 63 
 
 X. 
 
 Methodist 
 
 chapel. 
 
 1 
 
164 
 
 Charities, 
 where ra 
 ■able. 
 
 Public 
 
 fetry. 
 
 Public 
 
 Charities , •when rateable. 
 
 The distinction therefore as to where charities are 1 ate- 
 able, and where they are not so, seems to depend upon 
 this—whether there is any body who can be rated as 
 beneficial occupier. The trustees are not rateablewhen they 
 intermeddle with the property merely as nominal trustees, 
 because their occupation is not beneficial to themselves or to 
 others who could be deemed occupiers if they were not. 
 Neither are the poor, where they are mere inmates with¬ 
 out power or controul over the premises which they in¬ 
 habit, as in the case of St. Luke’s and Bartholomew s 
 hospital, Mr. Waldo’s alms-house, and the other cases 
 cited, for they are not occupiers (1). But where the 
 objects of a charity are occupiers , as in Lord Rich’s cha¬ 
 rity ( 2 \ or where another is a beneficial occupier for their 
 benefit, as in those of hospital lands (3), or the trus¬ 
 tees of a meeting-house, of which the surplus profit goes 
 to the preachers (4), the occupier is rateable, without 
 considering the charitable purpose to which the profits 
 are dedicated, even though the rate must ultimately come 
 from thence. Nay, where the charity is appropriated to 
 assist the parochial poor for whose support the rate is 
 raised, the property seems liable to be taxed if occupied, 
 although the assessment may be nugatory in some in¬ 
 stance^ and highly improper in others. ( 5) 
 
 pro . it has been already stated, that property occupied 
 solely for the.public use is not subject to assessment. 
 
 The tolls of a sluice in a navigation were vested in 
 commissioners by statute, “ to be applied and disposed 
 of to the uses and purposes of the said act, and to no 
 other whatever,” these uses, &c. being for improving the 
 navigation and draining the land. The commissioners 
 canot be rated for these tolls, because they are mere trus- 
 
 (1) Ante, 160. 
 
 (a) Ibid. 
 
 (3) Ant*, 162. w. (2) 
 
 (4) Rex v. -Agar, ante, 163* 
 
 ^5) Rex v. Catt. ante, i6i.Rex. v. 
 MuncLy, 1 East, 384. 
 
 tets 
 
Occupation for public Use. 1 6$ 
 
 f ees to superintend the execution of the act, without any 
 personal advantage (i). 
 
 Upon the same principle trustees under a drainage act Drainage 
 are not rateable in A. for lands purchased and buildings another 
 erected by them there for the outlet of the drainage, P ansh * 
 where they receive no benefit for such property in A., the 
 whole being derived to the owners of lands in other parishes 
 which were drained by the outlet. For they have no bene¬ 
 ficial occupation of the property in the parish either for 
 themselves or for others (2). So likewise turnpike tolls, 
 
 . paid 
 
 (1) Rex v. Salter’s Sluice Naviga- fited by this drainage. That the cona¬ 
 tion, 4 Term Rep. 730. missioners were not rateable, as having 
 
 (2) Rex v. Sculcoats, i2East, 40. a mere naked trust, and no beneficial 
 The parish officers of Sculcoats, in interest, was contended on the autho- 
 
 the rate made for the relief of the rity of the Salter’s Load Sluice navi- 
 poor, charged the commissioners of the gation case. (4 T. R. 730.) On the 
 Beverley and Bramston drainage in a other side were urged, s. 38. of the 
 certain sum in respect of certain lands above act, conveying the above estates 
 and buildings in that parish, purchased to the commissioners and their heirs, 
 by them, and converted into a drain, who were therefore in the actual oc- 
 under the act of parliament after cupation of the property. Also s. 39. 
 mentioned, which land was cut for the which says that they and their heirs 
 purpose of the drainage, and is now shall be deemed in law in actual pos- 
 covered with water, containing six session to all intents and purposes 
 acres. Against this, the commission- whatsoever. And s. 98., by which 
 ers appealed, and the sessions quashed they are to bring actions of trespass, 
 the rate. The special case stated the Lord Ellenborough C. J. said he could 
 act (38 G. III. c. 63.) by which com- not find by the act that the commission- 
 missioners were appointed for draining ers were in the receipt of any fund 
 low grounds in certain parishes therein for their own benefit, or were trustees 
 named. That for this purpose they of any divisible fund in their hands in 
 purchased the lands and buildings now this parish, for the benefit of others 
 rated, which lane’s and buildings were and certainly not so for their own 
 converted into part of a drain extend- benefit. That the only persons bene- 
 ing from Beverley* to Sculcoates, 10 fited were the owners of lands bene- 
 miles; but no part of the lands thereto fited by the drainage in other parishes, 
 adjoining are benefited thereby : pre- and in those liable to be rated for the 
 vious to the purchase these lands and improved value of their premises, 
 buildings had been rated, but since the Bayley J. asked, if there was any 
 making of the drain they had not. beneficial interest derived in this parish 
 And further, that the proprietors of from these works. Then they cited 
 the said lo.v grounds had been bene- R. v. Gardner, R. v. Aberavon, and 
 
 M 3 R. v. 
 
1 66 
 
 Lessee of 
 barracks for 
 the crown. 
 
 t 
 
 / ' ' ’ # - r * . . . 
 
 Occupation for public Use. 
 
 paid for the benefit of the public, are exempted from 
 rate, (i) 
 
 i 
 
 A colonel of a troop of horse-guards, by order of the 
 crown under the sign manual, took a lease of stables and 
 a riding-house for the use of the troop, at a certain rent, 
 the lease to be binding on the captain and colonel of the 
 troop for the time being, and the rent being stopped out 
 of the pay of all the troop, except the colonel, chaplain, 
 and surgeon. The only use made of these stables was to 
 keep the troop horses, with the accoutrements belonging 
 to them, except the horses and accoutrements belonging 
 to the captain and colonel of the troop, which never have 
 been kept there. The colonel, with whom the agreement 
 was made, died before the time at which the term was 
 to commence, and possession was delivered to his suc¬ 
 cessor, upon whom a rate was made. But he was held 
 not liable as the occupier; for although he is the lessee 
 of the stables, he derives no benefit from them: they 
 
 R. v. The Dock Company of Hull. 
 Lord Ellenborough C. J. In all these 
 oases the property rated yielded pe¬ 
 cuniary benefit, or that which was ca¬ 
 pable of being estimated and con¬ 
 verted into pecuniary benefit within 
 the parish to the parties interested, 
 but here the benefit results to the 
 lands obtained which lie in other 
 parishes, and the property would be 
 liable to a double rate if it were also 
 rateable in the hands of the commis¬ 
 sioners. Here is no benefit received 
 by the commissioners for themselves 
 or others within this parish, which is 
 capable of being rated. The benefit 
 is all divided in other parishes. The 
 Dock Company of Hull were in the 
 receipt of tolls for the benefit of the 
 share holders in respect of the use of 
 dre docks within the parish in which 
 
 11 
 
 they were rated ; but the commission¬ 
 ers are the mere instruments of be¬ 
 nefit to land owners elsewhere. I 
 know of no instance where a canal 
 company has been held rateable for the 
 mere space occupied by the canal in a 
 particular parish, if no tolls were re¬ 
 ceived or become due there; and I 
 cannot distinguish between land con¬ 
 verted into drainage and a canal. And 
 finally, he delivered the opinion of the 
 court, that the commissioners having 
 no beneficial occupation of the pro¬ 
 perty in this parish, either for them¬ 
 selves or others, were not liable to be 
 rated for it. Order of sessions con¬ 
 firmed. 
 
 (i) Per Lawrence, J. Rex v. Pro¬ 
 prietors of Staffordshire Navigation, 
 8 Term Rep. 340. 
 
 Are 
 
Occupation for public Use. 167 
 
 are used for a public purpose, and as such are not 
 rateable. (1) , 
 
 By 32 Geo. III. a sum of money, belonging to the Masters in 
 suitors of the court of chancery, was directed to be laid fo^the?/ 
 out in government securities, and the interest applied offices, 
 under the order of the Lord Chancellor, towards build¬ 
 ing and completing proper and convenient offices for the 
 masters in chancery and their clerks, and the secretaries 
 of bankrupts and lunatics, and their clerks, and safe and 
 secure repositories for the deeds, books, papers, and wri¬ 
 tings belonging to the suitors of the court and delivered 
 to the said masters or secretaries of bankrupts and luna¬ 
 tics, together with a public office for the suitors of the 
 court of chancery, in the stead or place of the then public 
 office for the reception of the said masters and secretaries, 
 and the transaction of their respective business therein. 
 
 And the act further provides, that the ground and build¬ 
 ings thereon shall be vested in his majesty, his heirs, and 
 successors, for the purposes of the act. In pursuance of 
 this act a building, with proper offices, was erected for 
 the reception of the masters, and the transaction of their 
 respective business therein; and they have been used for 
 the purposes of the act, and no other purposes whatever. 
 
 But a person was employed to collect and take care of 
 the buildings and papers, who was paid by the masters, 
 and lodged in three small rooms in the basement story. 
 
 The masters in chancery, who occupy these rooms only 
 in the business of their public station, are not inhabitants 
 and occupiers within the meaning of the legislature, so as 
 to be liable to be rated for them; for a building to be 
 rateable must be occupied for private purposes. (2) 
 
 (1) Lord Amherst v. Lord Somers, in delivering the judgment of the 
 
 1 I erm Rep. 372.Eckersall 'v. Briggs, court of Common Pleas, evidently con- 
 4 Term Rep. 6. Rex v. Terrot, siders it as applicable to the poor rates, 
 post. 173. And see the opinion of Lord Ellenbo- 
 
 (2) Holford r v. Copeland, 3 Bos. Sc rough C. J. Rex <v. Terrot, post, 173., 
 
 Pul. 129. The question arose upon a to the same effect. 
 
 paving act. But Lord Alvanley, C. J. 
 
 m 4 Pro- 
 
i 68 
 
 Crown pro¬ 
 perty. 
 
 The king. 
 
 Occupation of the Crown. 
 
 Property in the immediate hands of the crown if 
 directly connected in principle with the foregoing detei- 
 minations. 
 
 Thus the royal palaces are not liable, and never have 
 been rated (i)* It seems taken for granted in the case, 
 that this is a kind of prescriptive exemption of lands 
 which have been vested in the crown ever since passing 
 the act, and have never paid the tax, and that it does not 
 properly arise from the king’s prerogative. For the case 
 sent from the sessions for the court s opinion, stated as 
 facts proved before them, that His Majesty is rated to the 
 poor’s rate for the mews in the parish of New Windsor, 
 and that the same is paid by the master of the horse to his 
 majesty; and that His Mhjesty is rated foi the mews in 
 the parish of St. Martin, in the city of Westminster; and 
 Lord Mansfield seemed to sanction the propriety of rating 
 the crown in these instances, by observing that, cc as to 
 “ the mews in St. Martin’s parish, that part of it only is 
 
 rated which was taken in of late years, and which 
 “ was before that time ground belonging to some adjacent 
 « parish (2).” This opinion proceeds partly upon the 
 ground, that the mews are extra-pai ochial, but if that 
 were so, they could not be rated to an adjoining parish, 
 unless in aid (3), whether they belonged to the crown or 
 to a private individual: and it seems difficult to maintain 
 that they are exempt upon the ground of prescription, 
 for it has been often held, that no custom, prescription, 
 or usage, can have any power in restraining the operation 
 of a statute which is so modern as 43 Eliz. (4) The 
 true reason therefore seems to be that alieady given, viz. 
 that the king not being named in the act, is exempted by 
 virtue of his prerogative. (5) 
 
 (1) Per Lord Mansfield; Rex v. 
 
 Matthew*, Cald. 1. 
 
 (a) Ibid. 
 
 (3) See post, chap. xiii. 
 
 (4) Ante, and Cald. 414. 
 
 (5) See Holford-i/. Copeland, 1 Bos. 
 
 & Pul. 139. 
 
 But 
 
169 
 
 Occupation under the Crown, 
 
 But upon whatever principle the sovereign’s immunity Does not 
 from this tax depends, it does not extend beyond his 
 actual occupation. Wherever an occupier exists for under him. 
 private benefit he may be rated; and it makes no differ-* 
 ence whether he is a civil or military officer of the crown 
 (1). It has been decided that when the site of a palace is 
 demised to a subject for a certain permanent interest, 
 the grantees who occupy are rateable (2); also those who 
 beneficially occupy part of the royal parks, and (perhaps 
 for the same reason) of the palaces to their own use, are 
 liable to assessment (3), although the premises are to be 
 considered in all other respects as in the hands of the 
 crown. 
 
 So the crown’s lessee of certain duties, payable out of 
 - lead mines, is rateable. (4) 
 
 The ranger of Richmond park is, by virtue of his office, 
 entitled to certain profits arising out of land inclosed in 
 the park, the meadows of which are mowed at the King’s 
 expence for the use of the deer, and the overplus applied 
 for the use of the King’s and ranger’s horses; the arable 
 lands are manured, ploughed, and sown by the King’s 
 servants, and with his horses, but the seed is found and 
 the corn reaped by and for the ranger’s use. It was 
 found also by the verdict, that the profits arising to the 
 ranger for the whole of the said lands were w r ortli iool. 
 a-year, and he was held rateable for the same, as the pro¬ 
 fits of lands appertaining to his office of ranger; but the 
 court doubted at first whether his occupation was suffici¬ 
 ently stated (5). So a keeper of a royal park appointed by 
 
 (1) Per Lord Ellenborough, C. J. 
 Rex v. Terror, 3 East, 514. 
 
 (2) Duke of Portland’s case, I 
 Const. 131. * PI. 166. And Mr Cal¬ 
 decott’s note in page 15S. of his Re¬ 
 ports 
 
 (3) Rex <v. Matthews, ut supra. 168. 
 n. (r) 
 
 (4) Rowls Cells, ut sup. 112. n.(i) 
 
 (5) Lord Bute v, Grindall, Ibid, 
 n* (J) 
 
 the 
 
i^o Occupation under the Crown. 
 
 the ranger during pleasure, and occupying a lodge and 
 two acres of land within the parish, is rateable for what 
 he occupies (i). The master of the rolls, and the audi¬ 
 tors and tellers of the Exchecquer, are rateable for houses 
 which they occupy, in respect of their offices as servants 
 of the crown. (2) 
 
 These principles are so fully recognized and settled in 
 the judgment delivered by Lord Lllenborough, C. J. 
 that little room seems to remain for future doubts upon 
 the subject. 
 
 / ' / ' * 
 
 Colonels’ The appellant was a lieutenant-colonel in the artillery, 
 
 barracks! and the premises in which he resided, and for which he 
 was rated, were the property of the crown and part of a 
 barrack. They were fitted up for a field-officer, under 
 the direction of the board of ordnance, and at a consi¬ 
 derable expence. The building consists of two stories, 
 with four rooms on each floor, besides attics. The rooms 
 on the ground floor are thus appropriated; one room as 
 a store-room, another as a quarter for the adjutant, a third 
 as an office for a commanding officer to transact the busi¬ 
 ness of the regiment, and the fourth, as the appellant s 
 kitchen. The whole of the first floor, and the attics, 
 are the residence of the commanding officer of the artil¬ 
 lery for the time being (which the appellant then was), 
 together with a kitchen, wash-house, and other offices, 
 coach-house, stable-yard, and small garden or drying- 
 ground. The appellant resides there with his wife, family, 
 and servants ; two of the latter, a man-servant, who is 
 one of the private soldiers of the artillery, and his wife, 
 who is cook to the colonel, sleep in the attic, and the 
 other female servant sleeps in one of the rooms on the 
 first floor. The part used by the appellant is in every re¬ 
 spect separate and distinct from the rest, there being no 
 
 (1) Rex v. Matthews, i68.n. (1) (a) Per Lord Kenyon, Rex */. Hur- 
 
 dis, 3 Term Rep. 497. 
 
 com- 
 
4 
 
 Occupation under the Crown . 
 
 communication between it and any other apartment. At 
 the time of fitting up the building, chairs, tables, fire¬ 
 grates, and the usual barrack furniture, were supplied by 
 the crown; beds, and the residue, by the appellant. The 
 court were of opinion, that the appellant was rateable as 
 the occupier of these premises, and confirmed a rate made 
 upon him as such. 
 
 By Lord Ellenborough, C. J. who delivered the judg¬ 
 ment of the court.—“ The principle to be collected from 
 all the cases on the subject is, that if the party rated have 
 the use of the building, or other subject of the rate, as a 
 mere servant of the crown, or any public body, or in 
 any other respect for the mere exercise of public duty 
 therein, and have no beneficial occupation of, or emolu¬ 
 ment resulting from it, in any personal and private respect, 
 then he is not rateable. The property of the crown, in 
 the beneficial occupation of a subject , whether he be a civil 
 officer of the crown, as in Lord Bute’s case (who was 
 ranger of the new park near Richmond), and in the case 
 of the comptroller of Chelsea hospital, Eyre v. Smallpace, 
 2 Burr. 1059; or as a military officer^ as in Hurdis’s 
 case (1), he is in each case equally rateable. For, in 
 these cases, each of the persons rated had a degree of per¬ 
 sonal benefit and accommodation from the property en¬ 
 joyed by him, ultra the mere public use of the thing; and 
 which excess of personal benefit and accomodation, ultra 
 the public use, may be considered as so milch of salary and 
 emolument annexed to the office, and enjoyed in respect 
 of it by the officer for the time being. But if the use of, 
 or residence upon the property, be either as the servant of 
 the crown, and for public purposes only, as in Lord So¬ 
 mers’s case, or as a mere public officer or servant, or of 
 any other description, such as the superintendant of the 
 Philanthropic Society, Rex v. Field, 5 Term Rep. 587. 
 
 (1) Post. 175. 
 
 the 
 
Occupation under the Crown. 
 
 the trustees of a meeting-house, the servants at St. Luke’s, # 
 the masters in chancery, in respect of their public 
 offices (i ); in all such cases, the parties having the imme¬ 
 diate use of the property, merely for such purposes, are 
 not rateable, because the occupation is throughout that of 
 the public, and of which public occupation the indivi¬ 
 duals are only the means and instruments. It is said, 
 that if the commanding officer be rated for the degree of 
 private accommodation he enjoys in a building of this de¬ 
 scription, why not the soldiers in their barracks for the 
 accommodation they enjoy there? I am not aware that 
 private soldiers have any accommodations in barracks bc- 
 beyond what are required for the mere ordinary uses and 
 purposes of animal nature, I mean for sleeping and eating, 
 and the like; but if their barracks should supply even 
 them with any accommodation of a beneficial and valu¬ 
 able, and not strictly of a necessary nature, the analogy 
 between the two cases would rather afford perhaps a ground 
 for including them, under such circumstances, in the 
 rate, than for excluding an occupier of the present de¬ 
 scription from it. The reason of the thing, and the 
 sound and established construction of the statute, subjects 
 every person, who has the beneficial use of any local visi¬ 
 ble property in a parish, to this species of public contri¬ 
 bution. The parish is liable to be burthened with settle¬ 
 ments of them and their children: a part of the property 
 antecedently contributing to the poor rate is, by being 
 • thus birilt upon, and appropriated to such public purposes, 
 effectually withdrawn from its liability to contribute, un¬ 
 less the nature and quality of the occupation thereof re¬ 
 stores and throws it back again, either in the whole or in 
 part, within the scope and reach of this species of parochial 
 contribution. And the immediate occupant has, in fact, 
 nothing to complain of: for I believe it never has occured 
 In experience, that the quantum of the mere rate upon an 
 
 (i) See Holford v. Copeland, 3 Bos. & Pull. 129. 
 
 occu- 
 
Occupation under the Crown* 173 
 
 occupier of this kind lias exceeded, in amount, the bene¬ 
 fit and advantage derived to him from his occupation. 
 
 Whether the commanding officer could withdraw him¬ 
 self from the rate, by contracting his occupation in some 
 proportionable degree, within the same narrow limits ol 
 merely necessary enjoyment with the soldier in his bar¬ 
 racks, will be a question to be decided when it shall oc¬ 
 cur. It is enough for us to say at present, that upon the 
 principles laid down and acted upon, in the cases al¬ 
 ready referred to, the commanding officer in question, 
 has such a beneficial occupation of these apartments, and 
 other conveniences, as to render him rateable for the 
 same, and that this rate of course should stand, and the 
 rule for amending the same be discharged.” ( 1) ' 
 
 Where lands or other hereditaments ^ire beneficially Quantum of 
 occupied, the quantity of the occupier’s interest, or the 
 validity of his title to the possession, are immaterial (2). tenai * 
 
 He is rateable during his occupation, although he holds 
 at will (3); or may be turned out for misconduct (4); or 
 if his title is altogether defective. As when the dean and 
 chapter of Durham granted leases for 21 years of land, 
 reserving a right to them and their successors,-of laying, 
 making, and granting waggon-ways, paying reasonable 
 damage; the dean and chapter granted a waggon-way 
 over lands thus demised, the grantee of which inclosed 
 and occupied the soil of the line of way, erecting houses 
 and putting up gates thereon, thereby excluding the 
 lessees and their under-tenants. The court were of 
 opinion, that the grantee of this waggon-way was rate- 
 
 (1) Rex if Terrot, 3 East, 506. 
 (z) Per Luller, J. Lord Bute v. 
 Grindall, 1 Term Rep. 338. Per 
 Lord Mansfield, Jonoe v. Maunssll, 
 Doug. 36Z. • 
 
 (3) Per Buller, J. Lord Bute v. 
 Grindall, ante (z). Rex v, Matthews, 
 
 Cald. 1. Rex v. Hurdis, 3 Term Rep. 
 497. Per Lord Ellenborough, Rex 
 v. Terrot, 3 East, 513. Per Law¬ 
 rence, J. Rex ^v. Aberavon, 5 East, 
 453 - 
 
 (4) Rex v, Munday, 1 East, 504. 
 
 able 
 
174. Occupation under the Crown. 
 
 able for the land, 6£ as a piece or parcel of ground called 
 a waggon-way,” so long as he occupied it; for the ques¬ 
 tion is, whether the defendants are, or are not possessed 
 of property that is rateable to the poor? And though 
 nothing more passed than a way leave by the grant from 
 the dean and chapter, for they could grant no more, 
 not having reserved by the original lease a right to grant 
 the land, yet as the person rated occupied the land, it is 
 sufficient; for the court are not to inquire into the title of 
 occupiers. If a disseisor obtain possession of land, he is 
 rateable as the occupier of it. (i) 
 
 T he .f° ccu - The question of who is to be considered as the occu- 
 by^the °ses- pier, is generally a matter of fact, and when actually 
 sion, conclu- f oun( | Py the sessions, the court of king’s bench will hold 
 themselves concluded by the finding, unless that question 
 be expressly submitted to them, although the circum¬ 
 stances of the case would have warranted a contrary de¬ 
 duction (2). And when property is profitable in its na¬ 
 ture, as lands and houses, it will be considered by the court 
 as rateable unless it is expressly stated to them that no 
 profit can be derived from it. (3) 
 
 Evidence of 
 amount 
 must be 
 given. 
 
 But when the question before the sessions is upon the 
 quantum of the rate, the officers making it must shew to the 
 justices some probable ground for the amount at which 
 they charge the party in the rate. The mischief of any 
 other rule would be enormous. A small occupier may 
 be rated at once in the round sum of ioool. and left to 
 struggle his way out of that charge as he can (4). When 
 therefore the appellant being rated for tithe rents and 
 compositions under an enclosure act, disputed the quan- 
 
 (1) Rex <v. Bell, 7 Term Rep-598. Rex Agar, 14 East, 2 C. 3. See 
 
 (2) Rex ‘v. Turner, 1 Const. 126. also Rex v. Eyre, 12 East, 416. ante n. 
 
 PI. 158. (4) Per Lord EUenborough, C. J, 
 
 er Lord EUenborough, C. J. Rex v. To^ham, 12 East, 546. 
 
 I 
 
 turn 
 
175 
 
 Occupation of personal Property . 
 
 turn of the rate as well as the rateability of the property, 
 the Court held that it was not enough for the parish of¬ 
 ficers to shew that he was in the receipt of rent of this 
 kind, but they must give some evidence of the probable 
 amount, (i) 
 
 l. • 
 
 The master-gunner of the fort or battery of Seaford, The master- 
 who is a warrant-officer appointed and removable at ieafordbat- 
 pleasure by the master-general of the ordnance, though ter y* 
 his office is usually considered as a provision for life, was 
 rated as the occupier of the battery-house. The sessions 
 found in their case, that being so employed in the fort, 
 he occupied the whole of the house except one room, 
 which is allotted to the under-governor by direction from 
 the ordnance, and that the furniture of the house belong¬ 
 ed to the master-gunner. The court held, that upon 
 this statement he was properly rated ; for the statute sub¬ 
 jects every occupier of u lands, houses,” &c. to be rated, 
 and further that, the sessions having expressly stated that 
 he is the occupier, they have by that finding concluded 
 the question of his rateability. (2) 
 
 SECT. III. 
 
 Of the Occupation of personal Property to render it rateable. 
 
 To render personal property rateable, it must not on- Occupation 
 ly be in the possession of the person rated, but, when dis- property! 31 
 tinctly assessed as moveables, it should be his actual pro¬ 
 perty (3). For the tax is not imposed, as in the case of 
 real property, in respect of occupancy, but upon the per- 
 
 (1) Rex v. Topham, :»nte, 174. 
 n, (4).—The. Court tent the case back 
 to be reheard. 
 
 .(2) Rexv.Hurdis,3TermRep. 497. 
 
 (3) Per Lord Mansfield, Rex v 
 Ringwood, Cowp. 326. Rex v. Durs- 
 ley, 6 Term Rep. 53. Rex v. Uff- 
 culme, 2 Const, 3 Edit, 233. PI. 262. 
 
176 
 
 Silk throws¬ 
 ters. 
 
 Must yield 
 profit. 
 
 Occupation of personal Properly , 
 
 son’s ability as an inhabitant, of which ownership, and 
 not possession, is the criterion. 
 
 Silk throwsters who reside in the country, receive raw , 
 silk from their employers in London, which they clean 
 and throw in their mills according to the directions given 
 them, and then return it forthwith to their employers, 
 charging so much per pound of silk. They are not rate- 
 able for this silk as part of their personal stock, foi it is 
 not their property, and their profit is derived altogether 
 
 from personal labour. (1) 
 
 But possession of personal property is evidence upon 
 which the sessions ought to conclude, that the possessor 
 is the proprietor, unless the contrary is proved. (2) 
 
 Personal property must likewise yield a profit m the 
 (lands of him who is rated, or it can not be assessed (3). 
 Upon this ground a sum of money in a man s posses¬ 
 sion (4), and the furniture of his house, have been he.d 
 
 not rateable. (5) 
 
 It is not enough for a case to state that particular in- 
 habitants appeared in possession of stock in trade to spe¬ 
 cified amounts. The sessions should also state whether 
 this property belonged to the several persons sought to 
 be included in the rate, or if it did, whether or not it 
 
 (1) Rex v. Sherborne, Tr.n. 47 
 3eo. III. 
 
 (a) Rex f. Darlington, 6 lerm 
 Rep. 4^8. 
 
 (3I Rex u Canterbury, i;Bott. 13 *- 
 PI. 168. Rex Andover, Cowp. 
 550. Rex v. Dursley, 6 Term Rep. 
 53. Rex i!, Amblesuie, Mich. 53 
 Geo. 3. 16 East. 
 
 (4) Rex w. White, 4 Term Rep. 
 77V But judgment was given with 
 
 some scruples by two of the three 
 judges then in court and in a subse¬ 
 quent case, Lord Kenyon says, “ If a 
 person chuse to keep his property in 
 nionev, and the fact of his possessing 
 it be clearly proved, he is rateable for 
 that.” Rex v. Mast. 6 Term Rep. 
 
 154 * ' 
 
 (5) Rex v. White, ut supra, and see 
 
 ante, that they may be rated if they 
 
 yield a profit. 
 
 produced 
 
 / 
 
to render it rateable . 
 
 177 
 
 produced profit or was not liable to incumbrances equal 
 in value to the property itself. (1) 
 
 A case stated that certain persons were respectively 
 possessed of visible stock in trade, and liable to be as¬ 
 sessed in respect thereof, if by law it was liable to be 
 rated; that personal property was immemorially rated, 
 and the rates occasionally collected in the township down 
 to 1796, and rated but not collected from thence to 1807. 
 But the sums were nominal, having no relation to the 
 actual value of the property, and since 1807 it was not 
 rated at all. It was further stated that evidence was given 
 of tire clear amount of the surplus of stock in trade or 
 other personal property in the instances appealed against; 
 but the Justices added, that not being satisfied from the 
 evidence that there was any surplus by which they could 
 amend the rate, the court held that visible property, 
 such as stock in trade, merely as being visible is not 
 liable to be rated, it must also be productive, and the 
 justices having found that it was not productive, or, whicfi 
 is the same thing, that it was not proved to be so, that 
 finding concludes the question. (2) 
 
 1 • \ 
 
 It was laid down by one judge in an early case, that 
 personal property, if rateable at all, must at least be as¬ 
 certained, and not fluctuating and uncertain (3). If the 
 observation was designed to extend to all profits which 
 are of a fluctuating nature, it is inaccurate, for it would 
 exclude almost every kind of personal property, except 
 monies lent out at interest (4). But it is self-evidently 
 true, so far as respects each particular rate; since in or¬ 
 der to impose the tax, the profits out of which it is to 
 arise must be first liquidated and ascertained. (5) 
 
 • wa-* • .* » r / ' 
 
 (1) Rex «y. Dursley, when the or- (3) Per WUes, J. Rex v. Canter- 
 der was quashed for this defect, 6Term bury, ut supra, 176. n. (3). 
 
 Rep. 53. ( 4 ) Atkins v. Davis, Cald. 337 - 
 
 (2) Rex <y. Sir Archibald Macdon- (5) See ante, n. (2). Rex-y. Sir Ai 
 
 aid, 12 East, 324. ante, ny. Macdonald. 
 
 vol. 1. N Personal 
 
 Personalty 
 must be 
 productive. 
 
178 
 
 Personalty 
 of crown 
 and public 
 exempt. 
 
 ^Occupation of personal Properly, 
 
 * 1 
 
 Personal property belonging to the crown and the 
 public are exempt from tlie poor-rate, as well as real pro¬ 
 perty occupied by them (1). But this exemption does 
 not extend to the property of private individuals hired 
 for the public use at a stipulated price. A certain number 
 of packet boats are employed to carry the mails between 
 the ports of Holyhead and Dublin. The vessels are the 
 captains’ property, who build and repair them; but the 
 captains are appointed by the post-office, and receive an 
 annual salary of 50I. each. They are also allowed to cany 
 passengers, &c. which constitute the chief part of their 
 profits, but they are altogether under the controul of the 
 post-office as to the time of sailing, and the taking 01 1 e- 
 ceiving passengers, and they cannot be absent fiom their 
 vessels without leave of the postmaster-general, or his 
 agents, who may suspend them if their conduct is dis¬ 
 approved of. These vessels are not exempt fiom the 
 poor’s rate, for the crown has no property in them, even 
 pro tempore. The post-office cannot appoint any other 
 person to the command of the vessel, and though govern¬ 
 ment may exercise authority over them in ceitain parti¬ 
 culars, it is no longer, nor otherwise, than as the mas¬ 
 ters cliuse to retain their employment 5 for the ci o\v n can¬ 
 not divest the masters of their controul over the vessels 
 and appoint others to command them, and there is no 
 reason why the ship of an individual should not be rate¬ 
 able, when hired to perform certain services by govern¬ 
 ment, any more than when she is freighted by private 
 individuals for the purposes of commerce, the property 
 in both cases still remaining in the owner. (2) 
 
 (x) See the opinion of Lawrence, J. ject to the controul of the transport- 
 Rex v . Jones, Trin. 47 Geo. III. -board, for that does not divest the 
 
 (a) Rex v. Jones, supra, (i). owners’ property in these vessels, and 
 8 Bast, 451. So transports engaged transfer it to the crown. Seethejudg- 
 to carry out troops for government are tr.ent of Lawrence, J. Ib. 
 rateable although the masters are sub- 
 
( H9 ) 
 
 CHAPTER. X. 
 
 Of Rating double » 
 
 13 EAL property is not to be rated twice; the assess* 
 ment is to be levied on the occupier according to the 
 total profit, every person who has an interest therein 
 paying his proportion of the tax. So that the occupier is 
 the receiver of the whole produce, who, after defraying 
 all charges, distributes a fixed share of the net profits to 
 those under whom he holds, and retains the remainder 
 in remuneration of his trouble. 
 
 Upon this principle, rents are not rateable in the hands 
 of the landlord, for it would be a double assessment (i). 
 So quit-rents, and the casual profits of a manor, such as 
 fines paid upon renewal of copy-holds, heriots, &c. are 
 not assessable; the occupiers being respectively assessed 
 to the entire value of the lands out of which these in¬ 
 terests arise. (2) 
 
 Personal property is also exempted, where it has been 
 taxed in another shape (3). Thus the stock necessary 
 for cultivating and rendering a farm productive, is not 
 rateable, because the annual profits of the land being 
 rated, the profits of the stock are assessed in those of 
 the land. In estimating the yearly value of a farm, there* 
 
 (i) Per Lord Mansfield, Rovvis v. (2) Rex m. Vandewall, 2 Burr. 991, 
 Cells, ante, 155. (2). Rex v. Toms, Per Lord Kenyon, Rex«y. Alberbury, 
 Djuj. 401. i.Bott, 161. Per Eyre, C.J. 1 East, 536. 
 
 LordBute i/.Grindall, ante, 155. q.. (5) (3) Regina v. Barking, 2 Ld. 
 
 But see Rex v. Bishop of P^ochester, Raym. 1280, 16 Vin. Abr. 426. 
 
 21 East, 353. ante. 
 
 N z fee9 
 
 ✓ 
 
 1 
 
 1 . Real 
 property. 
 
 Rent, &c» 
 
 2. Personal 
 property. 
 Stock ©a 
 farm. 
 
i8o 
 
 Stock not 
 fed on farm 
 rateable. 
 
 Dairy un¬ 
 derlet by 
 farmer. 
 
 Of Rating double. 
 
 fore, the annual loss of capital laid out in purchasing 
 stock, with the expence of .maintaining it, and the 
 damage arising from wear and tear, operates in diminu¬ 
 tion of the profits, and should be deducted in assessing 
 the land, instead of forming a separate article for taxa¬ 
 tion. (i) 
 
 « But, if a farmer derive profit from stock, kept on 
 « his farm, but not connected with the management of 
 “ it; as if he keeps stock which he feeds with oil-cake 
 “ for sale, he is rateable upon for that stock, not as 
 « stock of his farm but as stock generally from which he 
 •«« derives a distinct and separate profit.” Keeping them 
 on his farm cannot exempt him, and he resembles a 
 tradesman, who is rateable not only for his stock in 
 trade, but also for his dwelling-house, although he con¬ 
 verts part of it into a shop, the rent of which forms a 
 drawback upon the net profit of his goods. (2) 
 
 The stock of the farm is exempted by this rule, al¬ 
 though it is underlet to another person, in such a wuy 
 that the taking constitutes a tenement distinct from the 
 farmer’s. The occupier of a farm, who was rated for his 
 farm , let his cows to an undertenant, called a dairyman, 
 at a certain rent per cow; which cows, by agreement, 
 were exclusively depastured in different grounds belong¬ 
 ing to the occupier of the farm, at different times of the 
 year, he being obliged to feed and maintain them with¬ 
 out any expence to the dairyman, who made a profit of 
 the milk and produce of such cows, independent of the 
 profit made by the tenant. The rate was appealed from 
 because the dairyman was not rated for this dairy; and 
 upon a case stated for the opinion of the court of king’s 
 bench, it was contended that he ought to be rated, 
 
 (1) Post. chap. xii. p. 192. EUenborough, C. J. Rex v.Thoma# 
 
 (a) Ante, 179. n. (3). Per Lord Brown, Trin. 47 Geo. III. 8 East, 518 . 
 
 either 
 
Of Rating double. 
 
 cither as the actual occupier of the land (i), or else as 
 the occupier of profits issuing out of it, which were dis¬ 
 tinct from the farmer’s. (2) 
 
 But the court were of opinion, that as the farmer was 
 rated for the farm, they must take it that he was rated 
 for all its actual profits. The dairyman’s profits were 
 not stated to be different from those of the land, but 
 from those of the farmer. The whole profits of the land 
 therefore being assessed by one general rate in the hands 
 of the principal occupier, were not liable to be assessed 
 a second time in the hands of one who occupied under 
 him, and this would be no injury to the appellant. (3) 
 
 • ’ # ^ 
 
 (1) Lord Bute a; Grindall, a H. Rep. 671. Rex <*. Piddletrenthide* 
 
 Black. a66. 3 Term Re P- 772. 
 
 (2) Rex <1/. Tolpuddle, 4 Term (3) Rex •*. Thomas Brown, Trill. 
 
 47 Geo. III. 8 East, 528. 
 
( I?* ) 
 
 fn lands, 
 
 &C. 
 
 » < -• 
 
 Water¬ 
 
 works. 
 
 CHAPTER XI. 
 
 Property , in what Place rateable , 
 
 PROPERTY, whether real or personal, or rather the 
 product upon which the rate is laid, must arise in 
 the district for which the assessment is made. In lands 
 or tenements, this must of course be in the place where 
 the thing itself is situate and yields its profit, whether 
 the proprietor actually reside in the parish or not (i). 
 Thus, if a gardener contracts to serve twenty families, 
 and carries all his crop to their different houses (which 
 are situate in different parishes), he is rateable for the 
 whole of his garden where it lies. (2) 
 
 In the case of the water-works, it was the opinion of 
 some judges, that the whole profits were assessable at 
 the fountain head, in the parish where the water was 
 collected, and from whence it was distributed by mealis 
 of the fire-engine and other works fixed there, as it there 
 first becomes property. For when water is once col¬ 
 lected by means of a fire-engine, and brought within 
 lands or buildings, for the purpose of supplying houses 
 at a certain stipend, it is as much private property as 
 the land itself. Whatever is done afterwards, is only 
 done for the purpose of vending that property to greater 
 advantage. (3) 
 
 Mr. J. Buller gives the following opinion in answer 
 to a case put from the bar:—Whether if the water was 
 
 carried 
 
 (1) Rex v. Cardington, Cowp.518. cision is much questioned in the 
 
 and see ante. following judgment ; 
 
 (2) Per Buller, J. Atkins v. Davis, “ A great deal of stress has been 
 
 Cald. 317. ante. “ laid, in the argument of th's case, on 
 
 (3) lb. & per Ld. Loughborough, “ the supposed authority of the case 
 357. But tiie authority of this de- “ of Atkins and others v. Davis and 
 
 “ others, 
 
 \ 
 
Property , in what Place rateable . 
 
 carried in carts, instead of pipes, the pump could be 
 rated for the value of all the water carried from thence t 
 “ Whether the water is carried in pipes or in carts to 
 44 the place where it is consumed, is quite immaterial. 1 
 44 hold in the case put, that the pump would be rateable 
 44 to the value of all the water carried from thence: for 
 44 the pump is the permanent visible property, and 
 44 the quantity of water carried from thence constitutes 
 44 its produce.” (i) 
 
 The 6 Geo. III. passed for better supplying the 
 city, liberties, and precinct of Bath with water, and 
 after reciting that there were springs of water in the 
 neighbourhood belonging to the corporation, enacted 
 that it should have power and authority to cause water 
 to be conveyed from such springs to the city, and gave 
 the corporation authority to enter upon and break up 
 the soil of any public highway or waste, and the soil 
 of any private grounds within two miles of the city, and 
 the soil or* pavement of any streets within the city, in 
 order to draw and collect the water oj the said springs , 
 
 « other?, reported in Cald. 3*3., hut “ foundation to make a rate and some 
 “ as the judges of the court of K. B. “ property rateable: And indeed upon 
 « we ;e equally divided, no decision “that ground, viz. the form of the 
 “ which can be relied on as authority “ action, which assumed the distress 
 “ was come to in this court. And al- « to be illegal in toto , and upon the 
 “ though it may be collected from “ difference which is to be found in 
 “ Lprd Loughborough’s judgment in “ the language of the stats. 27 & 41 
 “ the exchequer chamber, that he “ Eliz., did the united judgment of 
 “ thought that' the proper place nr here “the court of exchequer proceed, 
 
 « the -value of the -whole is to he taken “ and not upon the supposed rate- 
 “ h the fountain-head from -which the “ ability of the whole profits^ at the 
 “ -whole is to be distributed thereby “ fountain-head.” Rex. v. Corpora- 
 “ intimating two things ; first, that the tion of Bath, 14 East, 62 x. 
 
 “whole profit should be assessed at (1) Cald. 327* But per Lord Ellen- 
 “ one place, and, secondly," that such “ boroughC.J. For difference iathecase 
 “ one place should be the fountain- “ of the water being conveyed by pipes 
 “ head : yet he adds, « however, it is “ into another parish, is that the land 
 “ not -very material to consider that ‘ of the other parish is made use of to 
 « for upon the present action it is cer- “ earn the profit.” Rex v. Corpora-' 
 “ tainly sufficient to warrant the l e-ay- tion of Bath, 1 4 East, 61 7 - 
 « j n( r the distress , that here -was a 
 
 N 4 
 
 XS^ 
 
 and 
 
Property , in what Place rateable. 
 
 and to make reservoirs, and erect conduits, water-houses, 
 and engines necessary for keeping and distributing the 
 water, &c. and to lay under ground acqueducts and 
 pipes for the same purpose, and it vested the right and 
 property of all these in the corporation. The corpo¬ 
 ration made several reservoirs in the parishes of Tyn- 
 comb and Widcomb, where the springs were situated, 
 which reservoirs, by means of acqueducts and pipes laid 
 under ground, partly in the same parish and through 
 that of St. James into the parish of St. Peter and St. 
 Paul’s, supplied the city with water, and produced to the 
 corporation a clear annual profit of 6ool. The court 
 were of opinion, that as the corporation were not resi¬ 
 dents in L. and W. they could not be charged eo nomine 
 as inhabitants (i), but only as occupiers of the reservoirs 
 they were empowered to make, and in which the water 
 is kept, and that such reservoirs and waters kept therein 
 are comprehended within the legal description of land, 
 and were rateable as local and visible property within 
 the parish of L. and W. But they were further of 
 opinion that the corporation were only liable to be rated 
 for the profits collected in that parish, and not for the 
 whole profits of the water which flows from the springs 
 and reservoirs. But as the water was conveyed from 
 the reservoirs in L. and W. and distributed through seve¬ 
 ral parishes in Bath, and as not only the apparatus but 
 the soil itself in those parishes on which the pipes rest 
 must be considered as conducive to and acquiring the 
 water rent or profits; they were liable to be rated per 
 tanto in the other parishes as occupiers of local visible 
 property there. (2) 
 
 Fish 
 
 (1) Upon the authority Rex v. 
 Nicholson, iz East, 230. ante, 107. 
 
 (2) Rex v. Corporation of Bath, 
 14 East, 609. and the rate being 
 made upon the entire profits made 
 by it, was quashed on that ac¬ 
 count. So, by 49 Geo. III. a company 
 «stablished for supplying the town 
 
 and neighbourhood of Rochdale with 
 water, in pursuance of their power 
 laid main pipes under the streets and 
 highways for the conveyance of water, 
 and the inhabitants, with the com' 
 pany’s consent, put down pipes com¬ 
 municating from them to their re¬ 
 spective houses, paying such rates for 
 
 this 
 
Property , in what Place rateable . 
 
 185 
 
 Fish caught at sea are titheable: the tithe is rate- l isa, 
 able in that parish, by being brought into which they 
 yield a profit payable to the clergyman. (• i) 
 
 The case of tolls is ascertained upon the same prin- Tolls of a 
 ciple. Such as are paid for passing a bridge (2), a 
 sluice (2), or a turnpike-gate (2),. are evidently rateable 
 where these things are situated; for it is there only that 
 they become productive, as it is from passing there that 
 the duties accrue. 
 
 • *1 * 
 
 But the case of profits arising from toils upon barge- G f a naviga- 
 wavs or inland navigations, which run through several tlon ’ 
 parishes, has produced more discussion. They might be 
 rated either in each parish through which the goods aie 
 carried in proportion to the number of miles they float in 
 each; or at the place only where the tolls are actually 
 collected, whether it be appointed at the discretion of the 
 proprietors, or by direction of the statute by viitue of 
 which they are taken : or, finally, they might be rated 
 where the tolls become due. The court determined in 
 favour of the latter mode, in conformity to the decisions 
 already stated in the case of other tolls. Even where the 
 tolls were directed by statute to be taken “ at so much 
 per mile upon all goods;” it was held, that they were 
 assessable only in those parishes where the several voyages 
 are completed, and to the amount of the profits arising 
 
 this privilege and water as were 
 mutually agreed on. A11 assessment 
 on the company for their pipes and 
 rates was held good; for the com¬ 
 pany used that part of the land on 
 which their trunks and pipes were 
 laid, and as there could be no differ¬ 
 ence between a reservoir of so many 
 inches square, and pipes of so many 
 inches diameter, it was not to be 
 distinguished from Rex v. Bath Cor¬ 
 poration. Rex v. Rochdale Com¬ 
 pany, Trim 53 Geo. III. Maule and 
 Selw. MSS. 
 
 (1) Rex v. Carlyon, 3 Term Rep, 
 385. But fish are only titheable by 
 custom, whether taken in a pond, Ni¬ 
 cholas v. Elliot, 2 Gvvill. 616. 4 Gwill. 
 1581 . Wood, 5*3. or in the sea, Holland 
 -v. Heale, Noy. 108. Anon. Cro. Car. 
 264. Goslin v. Harden, 1 Roll. Rep. 
 419. 3 Bulst. Z4I. Per Parker. C. B. 
 Williams <v. Baron, 3 Gwill. 937. and 
 it is a personal tithe. Eod. Jud. Ibid. 
 
 1 Roll. Abr. 636. M. PI. a., i.e. the 
 tenth of the parishioners clear gains. 
 
 2 Inst. 657. 
 
 (a) See ante, 76. 
 
 thereon. 
 
186 
 
 Leeds 
 
 Canal. 
 
 Property , in what Place rateable. 
 
 thereon. For unless the voyage is completed, the con¬ 
 tract being entire, nothing can be due from the owner 
 of the goods. (i) 
 
 The proprietors of the canal navigation from Leeds to 
 Liverpool were enabled, by io Geo. III. and by 20 
 Geo. III. to make a canal from Leeds to Wanless Banks, 
 and to take a certain sum per mile for the tonnage and 
 wharfage of goods navigated thereon. These latter were 
 exempted by the acts “ from the payment of any taxes, 
 rates, assessments, or impositions whatsoever, other than 
 and except such taxes, rates, and assessments as the land 
 which had been or should be used for the purposes of 
 such navigations, cuts, or canals were or would have 
 been subject to, if this act had not been made.” By 
 34 Geo. III. the company were empowered to extend 
 their line of canal through several townships, and among 
 others to Llabergham Eaves; to take a certain price per 
 mile for tonnage and wharfage duty, but this new cut 
 was not to be exempt from the payment of rates. In 
 the course of the navigation, some goods were carried by 
 one voyage on part of the exempted line into that which 
 was unexempted, down to Habergham Eaves, where the 
 croods were discharged and the tolls became due. The 
 sessions confirmed a rate upon the company for the total 
 amount of the tolls which arose from the goods dis¬ 
 charged at Habergham Eaves, to the relief of the. poor 
 of that parish; but the court were of opinion, that the 
 land on which the canal was made under 10 and 20 Geo. III. 
 should be rated in the same manner as it was before 
 these acts. “ That the tolls are to be rated at Haberg¬ 
 ham Eaves, where they become due; but in calculating 
 . the quantum of toll which is the subject of the rate, al~ 
 
 ( 1) Rex v. Air and Calder Navi- tors cf Staffordshire Navigation, 8 
 gation, 2 Term Rep. 660. Rex v. 'Ierm Rep. 340. Rex *y. the Leeds 
 Mayor of London, 4 Term Rep. 21. and Liverpool Canal Company, acc. 
 1 Const. 201.PI. 202. Rex i>. Page, 5 East, 325. 
 
 4 Term Rep. 543. Rex r. Proprie- 
 
 lowance 
 
 \ 
 
 J 
 
Property, in what Place rateable. 
 
 iowance must be made for so much of the toll as accrued 
 in respect of the line exempted. For instance, if two- 
 thirds of the line are exempted, then-tolls which have 
 come along the whole line to Habergham Eaves, will only 
 be liable to be rated in the proportion of one-third. So 
 if the (roods have been carried fifteen miles,. five miles of 
 which are not exempt, they must be rated only for these 
 five miles, and so in proportion. It will be easy there- 
 fore, in all cases, to calculate the proportion ol: tolls 
 which are rateable according to the number of miles 
 which the goods have been carried along the exempted 
 and unexempted lines of the canal.” Fhe rate therefore 
 being made, taxing the tolls altogether without this al¬ 
 lowance, was quashed. (i) 
 
 * 
 
 The profits of tolls and duties payable to the Har- Of a light- 
 wich light-houses, were adjudged not assessable upon 
 the principle, that tolls can only be taxed where 
 they become due. They were payable by all ships pass¬ 
 ing or coming into that harbour, part only thereof being 
 received at the port of H. the remainder at many diffe¬ 
 rent parts of the kingdom. The collections were casual 
 as ships pass by, or come into the harbour, and there was 
 no other advantage arising to the proprietor from the 
 light-houses. It is taken for granted in the argument, 
 but not stated as a fact in the case, that the light-houses 
 were situated within the parish for which the rate was 
 made. But whether the tolls became due in an extra- 
 parochial place, or where else, is not expressly mentioned. 
 
 The court were of opinion, that the tolls were not lo¬ 
 cally situated within the parish, and therefore not rate¬ 
 able there. (2) 
 
 By 17 Geo. II. c. 37. when waste lands, which were 
 formerly fens and marsh, are drained and improved, and 
 
 Marsh bnd 
 when ‘drain 
 ed. 
 
 (1) Rex v. Leeds and Liverpool PL 177. and see the argument, Rex 
 
 Canal Company, .5 East, 325. v. Cardington, Cowp. 581. Rex v. 
 
 (2) Rex-v. Rebovve, r Const. 142. Tynemouth, 12 East, 46. aute.iJ3(j). 
 
 the 
 
x 88 Property , in what Place rateable . 
 
 the parish to which they belong cannot be ascertained, the 
 occupier thereof, or of houses built thereon, tenements, 
 tithes arising therefrom, mines therein, and saleable un¬ 
 derwoods thereon growing, or hereafter to grow, are to 
 be rated to the parish that lies nearest to such lands; and 
 if any dispute shall arise as to what parish or place they 
 ought to be rated to, the justices in quarter sessions shall, 
 after due notice given to the persons interested, and to 
 the parishes and places abutting and adjoining the said 
 lands, cause them to be assessed in such place as they 
 think meet, and their determination and allotment is to 
 be final and conclusive. 
 
 Personal To render the profits of personal property rateable, 
 
 property, they must arise in that parish for which the rate is made, 
 where rate- , . . ii/\ 
 
 able. and therefore the property must be situated there. ( i ) 
 
 Upon this ground the owner was adjudged not rateable 
 
 in the parish where he resided, for money which he had 
 
 vested in real securities upon lands lying without the 
 
 parish (2), nor for money laid out in the public funds..(3) 
 
 Ships,where The place in which ships are assessable to the poor 
 
 >ateab!e. rate depends upon the same principle with the taxation 
 of navigation tolls and tithe fish. Although the profits 
 are derived from voyages performed at sea, they are 
 rateable during their continuance in the parish which is 
 their home, where the owner resides, and where they 
 become productive. (4) 
 
 Packet The packet boats which ply between Holyhead and 
 
 boats. Dublin are built and repaired at the Head. The captains 
 
 who are the owners, reside there, and are employed by 
 the English post-offices at a salary of 50I. per ann. each. 
 The chief source of their profits arises from carrying pas- 
 
 (1) Rex v. Howard, 8 East, 458. (3) Rex v. St. John's Medder- 
 
 n. (a). market in Norwich, ante, 141. 
 
 (t) Rex <v. White, 4 Term Rep. (4) Rex •v. White, ante. (a). 
 
 771. Rex v. St. John’sMaddermar- 
 ket, 6 East, 182. 
 
 sengers, 
 
189 
 
 Properly , in vohat Place rateable . 
 
 % 
 
 angers, &c. from the parish of Holyhead to Dublin, and 
 from Dublin to the Head. The passage money is paid 
 where the passengers are landed, or leave the packet boat, 
 and as much is received at Dublin as at Holyhead. Cap¬ 
 tains who reside in the parish of Holyhead, are rateable 
 there for the profits accruing from the carriage of pas¬ 
 sengers, &c. that parish being their home, from whence 
 they sail, and to which they return, Dublin being only 
 the port ad quern , or termination of their voyage, and 
 they yield profit there, for the passage-money from 
 Dublin is actually earned, and that from Holyhead to 
 Dublin is begun to be earned there. (1) 
 
 The resolution in Sir Anthony Earby’s case states, that How fer 
 personal property to be rateable, must not only be locally 
 situated within the parish, but visible there. Several 
 opinions of the judges in subsequent cases are to the 
 same effect (2), and in determining, whether principal 
 
 (1) Rexv. Jones, Trin. 47 G. Ilf. parish, it must be permanent in that 
 ante, 130. (3). but the court did not parish and produce a profit there ; and 
 decide whether these vessels are rate- that this property is only made pro- 
 able for profits of the voyage to Dublin ductive by going out of the parish, 
 where the freight for the outward The same argument applied, however, 
 voyage became due, that being a with equal force in the case of the 
 question which respected only the King v. White, where it was over¬ 
 quantum of the rate. But Mr. J. ruled. But why may not this pro- 
 Lawrence gives the following opinion: perty be said to be productive in the 
 « It is argued that this is not local parish ? The contract for the pas- 
 visible property producing profits with- sage-money from Holyhead to Dublin 
 in the parish: the case, however, states, is made at Holyhead, and there is an 
 that the boats are built and repaired inchoate inception of the voyage there : 
 at Holyhead; that the masters live and that from Dublin is actually paid 
 there, and there hire the crew. There at Holyhead where the contract is 
 is no other place besides Holyhead completed. At any rate this objec- 
 and Dublin to which it can be pre- tion, if it could have any place at all 
 tended that these boats belong : but under these circumstances, would only 
 though there were the same poor laws go to the quantum ; though at present 
 |n Dublin as here, I do not see how I think the boats would not he rate- 
 the boats, under these circumstances, able at all in Dublin.” 
 could be rated there; though even that (2) Rex v. Canterbury, 1 Const, 
 
 would only affect the quantum of the 140. PI. 174. Rex. v. Andover, 
 rate. It is said, however, that to Cowp. 3JO. 
 make any property rateable in any 
 
 money 
 
igo Property , in what Place rateable. 
 
 money in the custody .of the owner was rateable, Mr. J. 
 Buller relics upon it as an argument in the negative, that 
 the rate must be confined to visible property, yielding 
 profit in the parish (i). But other judges have found it 
 difficult to affix a determinate meaning to the term, 
 visible property. (2) 
 
 + _ 
 
 That it must be to a certain degree visible, or more 
 properly perceptible, is manifest, since, otherwise the 
 parish officers will be unable to support by competent 
 proof, that the property which they have rated is actually 
 possessed (3). But there are several kinds of property 
 which are liable to the rate, and yet not generally and 
 sometimes not even the possible subject of ocular inspec¬ 
 tion. Thus Lord Kenyon observes, “ it is said that 
 “ only property which is visible should be rated; but I 
 u think that is carrying the rule of exemption too far; 
 06 for oblations and other offerings which constitute the 
 “ rectorial or vicarial dues, are rateable.” (4) 
 
 Owner must To render personal property rateable, it is also neces¬ 
 sary that the owner should inhabit within the parish w r here 
 it is situate. Lord Mansfield defines visible property to 
 be something local in the place where a man inhabits, 
 adding the qualification of residence by the owner to what 
 is implied by the term local, as applied to the thing to be 
 rated (5). Upon this principle it has been decided, that 
 ships which lie in a parish where the owner does not 
 reside cannot be assessed there, although he has a ware¬ 
 house and counting-house in the parish (6), and they are 
 
 registered 
 
 (1) Rex r v. White, ante, 188.11.(2). 
 
 (2) Lord Mansfield, Rex -v . Ring- 
 wood, Cowp. 326. 
 
 (3) Per Lord Kenycn, Rex <v. 
 White, 4 Term Rep. 771. 
 
 (4) Rex v. Carlyon, 3 Term Rep. 
 
 38?. 
 
 (5) Rex v. Ringwood, 145. n. (3). 
 
 3 
 
 See also Rex v. St. John’s Madder- 
 maiket, ante, 141. 
 
 (6) W. H. appealed against a rate 
 wherein certain ships of his were rated 
 in Liverpool. He did not live in 
 Liverpool at the time, but held a 
 warehouse and counting-house there, 
 in which no'one slept, and for which 
 
 he 
 
/ 
 
 Property, in what Place rateable . 
 
 V V r 
 
 registered there; for that does not make the owner an 
 inhabitant for the purpose of being rateable, (i) 
 
 he was rated, and the ships were re¬ 
 gistered in L. and stated in the regis¬ 
 ter to belong to that port. The court 
 said that the sessions had found that 
 the appellant was not an inhabitant of 
 the parish of L., but had not found 
 that the ships rated were locally with¬ 
 in the parish, but only within the port 
 which might he more than co-exten- 
 sive with the parish, and that it was 
 only on one or other of these grounds 
 on which the rate could be supported. 
 Lord Kenyon, C. J. however seemed 
 to think that the appellant was not 
 rateable under these circumstances, 
 for that a person might be deemed an 
 inhabitant for some purposes and not 
 for all. And he observed that the 
 43 Eliz. did not direct that personal 
 property should be rated eo nomine , 
 but the persons themselves inhabitants 
 according to their ability, which can 
 only be known in respect of personal 
 property, which is of a fluctuating na¬ 
 ture, by stating the account of debtor 
 and creditor, and taking the surplus 
 only as the criterion of that ability* [a] 
 Upon a case reserved it appeared 
 that the defendants did not reside at 
 Hull, though they hid a counting- 
 house there. It was stated that the 
 defendants were owners of the ships, 
 and that the ships were locally within 
 
 the parish at the time of the rate, and 
 were registered there: it was con¬ 
 tended that this was the home of the 
 ships, and that the personal presence 
 of the owners was not necessary. The 
 court had great doubts upon the state¬ 
 ment of the case as well on the ques¬ 
 tion of inhabitancy, which they seemed 
 to think negatived by the case, as also 
 upon the defect of the case in not 
 shewing that the owners derived any 
 benefit from the ships within the 
 parish of H. They seemed to be of 
 opinion that the mere fact of being re¬ 
 gistered at H. could not make them 
 rateable there; vessels being some¬ 
 times rated in places not their proper 
 home : and that it was not considered 
 of any weight in Rex v. Liverpool. 
 They observed also that the case did 
 not state that the ships in question 
 terminated their voyage at H., or that 
 the owners received any profit there: 
 without which they might on the same 
 ground be rated at every place where 
 they touched in the course of their 
 voyage, {b) 
 
 (i) Rex v. Collinson, Ibid. 3 Burn. 
 Just. Edit. ao. p. 930. and the prin¬ 
 ciple of the decision explained Rex 
 v. Jones, Trim 47 Geo. III. 8 East, 
 
 AS 1 - 
 
 (a) Rex <v . Liverpool, 8 East, 
 455 - n - 
 
 (£) Rex v. Collison and Taylor, lb. 
 See Rex -v. Howard, 44 Geo. III. the 
 
 same question again came on, and it 
 seemed that it was necessary to state 
 that the ship was locally within file 
 parish at the time of the rate, lb. 
 
I 
 
 Rate on ao 
 tual value. 
 
 X. Rate on 
 product of 
 labour. 
 
 A 
 
 ( 19 2 ) 
 
 
 CHAPTER XII. 
 
 Of the Principles upon, and Proportions in which the 
 
 Rate is to he made . 
 
 r~i—v 1 
 
 I 
 
 HE sums raised for the poor’s relief should be assessed 
 upon the productive value of all property occupied 
 in the district for which the rate is made, for the tax lias 
 reference to the present local ability and situation of those 
 who are to pay it. A parish therefore cannot have a 
 standing rate, neither should an old one be confirmed, 
 for the proportions must vary with the fluctuations of pro¬ 
 perty (1). It will be bad, likewise, if made according to 
 the land tax (2). Also if two districts of a parish agree 
 that each shall contribute to maintain the entire poor in a 
 certain proportion, and act under it for a long period, 
 yet it will not be binding, if upon enquiry it appears that 
 the contributions are unequal in the present state of the 
 parish (3). But the assessment in the old rate maybe a 
 good reason for making one similar in the new, unless 
 there is some increase or decrease of value. (4) 
 
 It has been already shewn (5), that the pecuniary ability 
 of each district arises from three sources: 1st, The pro¬ 
 duct of labour; 2d. Of capital or personal property ; 
 and, 3d. Of real property, such as lands, houses, and 
 the like. It has been also stated, that the first species of 
 property is not directly assessable. (6) 
 
 (1) Rex -v . Audley, 2 Salk. 526. (4) Rex v . Wrexham, 1 Con$t. 
 
 (2) Rex v. Clerkenwell, Fol. 12. III. PI. 134. 
 
 (3) Per Lord Kenyon, Rex v. (3) Ante, p. 142. 
 
 Newell, 4 Term Rep. 266. (6) Ibid. 
 
 13 Personal 
 
 
 / 
 
Principles and Proportions of the Rate. 
 
 l 93 
 
 Personal property, with reference to this statute, is 2. On per- 
 defined by Lord Mansfield, 44 the surplus of a man’s pro " 
 44 estate and effects, after payment of debts, the mainte- 
 44 nance of his family, and necessary expences (1).” But 
 it has never been decided, whether such indefinite quan¬ 
 tum s, as maintenance and necessary expences, can be de¬ 
 ducted. 
 
 Analogy to the tax of subsidies in use when the 43 Eliz. 
 passed (2), and the manner in which the poor’s rate is 
 imposed on real property, imply that it is to be levied on 
 the clear profits of the productive subject, without fur¬ 
 ther drawback. Lord Kenyon seems also to have Consi¬ 
 dered, that the sole question necessary to determine its 
 rateability is, 44 whether or not it produced a profit, or 
 44 was liable to incumbrances equal to the value of the 
 44 property itself.”(3) 
 
 The principles upon which this kind of property should 
 be assessed, have not been settled by judicial decisions. 
 
 But it is laid down, that if a person be rated for stock in 
 trade, and virtually submits to his assessment by not 
 appealing against the rate, it is primd facie evidence, 
 that he is assessable in the ensuing year to the like 
 amount (4). It has been likewise remarked, that per* 
 sonal property is not to be rated at random, or the 
 party left to get off as he can; but the officer making 
 the rate, must be able to support what he has done by 
 evidence. (5) 
 
 It may be observed on this subject, without the guidance What 
 
 PI. 171. There may be often great (4) Rex <v. Darlington, 6 Term 
 difficulties in ascertaining the true Rep. 468. See also Rex -y. Brograve, 
 quantum of profit as in rating stock in 4 Bur.t 2491. 
 trade. Per Lord Ellenborough, C. J. (5) P er Lord Kenyon, citing the 
 
 Rex v. Agar, 14 East, 261. 
 (a) Ante, 142. 
 
 VOL, to 
 
 opinion of Yates, J. Rex -z/. White, 
 
 4 Term Rep. 771. 
 
 Q 
 
 of 
 
194 
 
 from pro¬ 
 duct ofper¬ 
 sonal pro¬ 
 perty. 
 
 Deduction 
 of debts. 
 
 Principles and Proportions of the Bate . 
 
 of cases, that as the tax is laid upon the net profits, the 
 proprietor is entitled to deduct the prime cost, the ex¬ 
 pellees of clerks, warehouse-room, insurance, and what¬ 
 ever else the tradesman or merchant subtracts, as consti¬ 
 tuting the difference between the gross and net produce 
 of stock, so far as they operate in diminution of his per¬ 
 sonal ability to contribute. 
 
 It is not settled whether he can deduct the value of his 
 individual labour, upon the same principle which exone¬ 
 rates the profits of personal labour in professions and me¬ 
 chanical trades, or whether it is to be considered as 
 merged in the profits of stock, and rateable therewith. 
 But a trader may subtract the interest of borrowed capi¬ 
 tal, for it is in the nature of an incumbrance upon the 
 goods(i). Yet he cannot allow interest for his own, 
 because though it forms no part of the net profits of his 
 trade, it is rateable in another shape, namely, as the 
 direct produce of his capital. 
 
 It is said, that the total amount of a man’s debts (2) 
 is to be deducted, and the tax laid upon the profits of his 
 surplus property. This principle, which is highly equita¬ 
 ble, may give rise to some difficulty when it operates in 
 conjunction with another rule, viz. that personal estate is 
 only rateable where it is locally situated. If, on the one 
 hand, no other property of this description is assessable 
 within the parish for which the rate is made than what 
 exists there (3), and if the debts are to be considered, on 
 the other, as following the person, so that their total 
 amount, wheresoever contracted, are to operate not 
 against the entire personal ability of him who is rated, 
 but against his particular local ability in that parish; t 
 
 (1) Rex <v . Dursley, 6 Term Rep. Lord Kenyon, Rex v. White, 4 Term 
 53, Rep. 771. Sea also in Rex v. Liver- 
 
 (a) Rex i>. Canterbury. Rex v. pool, ante. 191,. 
 
 Shalfieet, ante, 144. 4 Burr. 3011. Per (3) Ante, 188. 
 
 13 gives 
 
Principles and Proportions of the Rate. 195 
 
 » 
 
 gives a great advantage to those whose property is dis'- 
 
 tributed in several districts. . » 
 
 * 
 
 • ✓ 
 
 Thus, for example, if the person to be taxed ha& 
 
 160,cool, distributed in ten several parishes, and resides 
 in all, viz. io,oool. in each, and his total debt amounts 
 to ten thousand pounds; this debt operating to its full 
 amount in every parish, and the 10,cool, property 
 which he has in each parish, being the whole of what 
 is rateable there, he escapes from the tax in all, though 
 possessed of a clear personal estate of 90,0001. yielding 
 an annual return. But if this ioo,oool. is situated iri 
 one parish, he is rateable for the profits of 90,0001. 
 which is the real amount of his property, deducting his 
 debts, and constitutes his personal ability. 
 
 Personal property is not usually rated. It is difficult Difficulty of 
 to ascertain its actual amount, unless by using those arbi- 
 trary means, which are neither provided by the poor laws, 
 nor permitted by the spirit of our constitution. Some¬ 
 times, a fair disclosure of his effects is supposed to in¬ 
 jure a commercial man, and he woiild rather chuse to 
 submit to the imposition of an exorbitant assessment, than 
 seek redress at the hazard of his credit. These, and 
 other reasons, have induced most parishes to refrain as 
 it were by common impulse, from assessing personal pro¬ 
 perty since the 43d Elizabeth. Its liability is no longer 
 questionable; but the apprehension of mischievous con¬ 
 sequences has usually prevented its being rated even in 
 manufacturing countries, where the omission presses upon 
 
 the landed proprietor with considerable hardship. 
 
 * 
 
 * . \ 
 
 The fund for maintaining the poor is therefore 3 - ^ ate oa 
 chiefly raised by a pound rate upon real property. It perty. 
 seems as if some judges had at one time thought, that 
 in rating this species of property, regard should be had 
 
 02 to 
 
I96 
 
 Mode by 
 which value 
 increased 
 immaterial. 
 
 Principles and Proportions of the Rate . 
 
 1 I ' 4 
 
 to the general condition and ability of the occu¬ 
 pier, as well as to its actual value, in the same manner as 
 takes place in rating personal estate (1). Such a principle 
 of rating would, vary the amount of the tax according 
 to the number of the occupier’s family, his debts, and 
 other circumstances, upon which his ability to contribute 
 to the maintenance of the poor usually depends. But 
 this opinion, if it ever was adopted in practice, seems to 
 have been long since abandoned (2), and real property 
 is now assessed upon the principle, that the tax shall he 
 imposed on the actual productive value of the particular 
 subject at the time of making the rate , whether that is more 
 or less than what it had been when the former rate was 
 made . (3) 
 
 If a house to day is let for 30I. per annum, and to¬ 
 morrow, if turned into a shop, would let for 5 ol.; when 
 it is turned into a shop it shall be rated at 50I. (4) If a 
 person has a small piece of land in the heart of a town, 
 which is only of small value, and he afterwards build on 
 it, he must be rated to the poor upon its improved value 
 with the building upon the land. (5) 
 
 The circumstances and manner in which that property 
 became so valuable are not to be considered (6); whether 
 the person rated occupies as proprietor or lessee, he can 
 obtain no abatement from the actual value, because in¬ 
 creased by his improvements, however beneficial they 
 may be to the parish, permanent in their nature, or 
 laudable in their object. 
 
 + 
 
 (1) Anon. Comb. 479. And see Gardner, Cowp, 84. Rex v. St. 
 Lord Mansfield's observations, Rex -v. Luke’s, a Burr. 1153. (1) 
 
 Uffculmc, ante, 68. (a) (4) P er Buller, J. Rex v. St. Nicho- 
 
 (a) See ante, 68. and the cases cited las Gloucester, Cald. a6z. 
 in the notes. (5) Per Lord Kenyon, C. J. Rex v. 
 
 (3) See the opinion of De Grey, Mast, 6 Term Rep. 154. 
 
 C. J. Kemp -v. Spence, a Black. 1Z45. (6) Per Ashhurst, J. Ibid, 
 
 and of Lord Mansfield, C. J. Rex v. 
 
 IO 
 
 Thus 
 
191 
 
 Principles and Proportions of the Rate • 
 
 Thus where a gentleman had durchased an estate, improve 
 which he kept in his own possession, and rendered of ments ” 
 greater value by various improvements, it was held by 
 the court of king’s bench, that he must be rated accord¬ 
 ing to the improved, and not the original value or first 
 cost. (i) 
 
 So where it appeared that a Farm was let on lease at a 
 reserved rent, which was then its annual value, and nei¬ 
 ther fine nor other premium or consideration was paid to 
 the landlord, beside; but during the progress of the term, 
 the farm rose in value beyond the rent. It was thought 
 a question too clear to admit of argument, that the rent 
 was not conclusive evidence of the value, but that the 
 farmer must be rated according to the actual improved 
 
 worth of what he occupied. (2) 
 
 * * 
 
 More difficulty arises in determining by what method 3. Modes of 
 
 * * 1 j _ 
 
 this present value is to be ascertained. In the case of ^'houTes. 
 lands and houses, the rate is usually imposed in one of 
 three ways: 1. Upon the actual rack-rent, when they are 
 in the hands of a lessee. 2. On a supposed rent formed 
 on valuation; which is done where they are occupied by 
 the proprietor, or by a tenant who pays less rent than the 
 premises are worth. 3. On an annual per centage cal¬ 
 culated upon the purchase money, with a just allowance 
 for necessary outgoings. 
 
 All these modes of valuation proceed upon the assump- 1. On th« 
 
 i3clC”rcnti 
 
 tion, that the rack-rent is the criterion of that actual 
 value upon which the tax is laid: but this principle is fal¬ 
 lacious; rent being only so much of the actual value as 
 the tenant can afford to pay his landlord, deducting the 
 expence of cultivation, and a reasonable remuneration for 
 
 (j) Rex v. Mast, ante, 196. (2) Rex v. Skmgla, 7 Term Rep. 
 
 *. ( 5 ). , 549 - 
 
 0 3 
 
 trouble 
 
©eduction^ 
 
 thereon. 
 
 Inconve¬ 
 nience of 
 rating by 
 the rack- 
 rent. 
 
 Principles, and Proportions of the Hale. 
 
 trouble and time. The rent therefore is the landlord's 
 profit, the reasonable remuneration is the tenant’s profit. 
 Both come from the land, and form parts of its produc¬ 
 tive value. When land is occupied by the proprietor, he 
 receives both these profits; when it is demised to a tenant, 
 
 * i 
 
 they are divided. 
 
 Deductions for expences of labour and capital' necessary 
 to render the subject productive, should be considered in 
 both cases as drawbacks upon the profit, and due allowance 
 should be made, upon the same principle, for every part 
 of the produce which belongs to another person, and 
 may be rated in his hands; such as tithes. So also if 
 lands, subject to a right of common, are rated in the 
 hands of the proprietor, a deduction ought to be made 
 proportioned to the value of this right, as it takes from 
 him so much of the benefits of the soil(i). But the 
 net produce after these deductions, whether it goes to 
 the landlord in the name of rent, or to the tenant as 
 profit, or to the occupant proprietor who stands in the 
 place of both, is the legitimate object of tax in the hands 
 of him who occupies the land. 
 
 If no other property but land was rateable, there seems 
 but one objection to this mode of fixing the rate by the 
 rack-rent; namely, that the tax would fall principally, 
 if not altogether, upon the owner of the inheritance. 
 But as most, if not all kinds of real property are rateable, 
 some mines excepted, this practice produces great inequa¬ 
 lity, and violates the grand rule of rating, which is, “ that 
 M whatever be the proportion of rating in a parish, 
 
 4 6 whether to the full value or otherwise, the rate must be 
 i( equally made on all persons.” (2) 
 
 % 
 
 (1) Per De Orey, C. J. Kemp v. (2) Per Lord Kenyon, C. J. Rex 
 Spence, 2 Blaefk 1245 * v. Mast. 6Term Rep. 154. 
 
 . * ' Thus 
 
» 
 
 Principles mid. Proportions of the Rate. 199 
 
 ✓ ' 
 
 Thus tithes, coal-mines, tolls, water-works, .and sale- As to 
 
 * titne^ Sc*. 
 
 able under-woods, are assessed according to the net an¬ 
 nual amount of profits, deducting all expencest or, in other 
 words, they are rated at their full value: but land, when 
 rated upon the rack-rent, is only assessed according to the 
 landlord’s profits, or minus the productive value, by what¬ 
 ever the farmer’s profit amounts to. 
 
 Let it be supposed, by way of example, that the fail- 
 principle for dividing the annual produce of a farm be¬ 
 tween landlord and tenant, is, that after deducting all 
 expences, each should take one half, and that the annual 
 average of this moiety is the rack-rent stipulated to be 
 paid; it is obvious, that if the farm is assessed upon its 
 rent, the occupier is rated only for half the actual value 
 of the land, while the clergyman, and those who occupy 
 tolls, coal-mines, &c. are rated at the full value of the 
 property, or in a two-fold proportion. 
 
 But the principle is still more unequal when applied to t0 
 buildings. In general they yield no direct profit to the 
 tenant. The rent therefore is the total annual produce ; 
 but as buildings are subject to decay, the rent should be 
 divided into two parts; one to be laid by for the purpose 
 of repair, or, in other words, to reproduce the capital, 
 which has been expended on a perishable subject. This 
 portion is not assessable, because capital is not directly 
 taxed to the poor’s rate. The remainder is the 
 annual produce of the capital thus originally laid out, 
 and is the only fair object of assessment. A house, there¬ 
 fore, yielding a certain rent, is, by this method, not only 
 assessed more than what land yielding the same tent is, ^ 
 but so much more as the sum amounts to, which the 
 proprietor ought to lay by out of his rent, for the re¬ 
 production of his capital. 
 
 o 4 
 
 Such 
 
200 
 
 3* By a pe 
 centage. 
 
 Principles and Proportions of the Rate. 
 
 Such a division is nearly made by the landlord and 
 tenant, when the latter agrees to make those substantial 
 repairs which he would not otherwise be compellable to 
 do. Where that takes place, the rent paid to the land¬ 
 lord is the true profit which should be taxed, the tenant 
 not being rateable for these repairs, although they are in 
 effect a rent payable to the landlord in kind. But where 
 the landlord is to make these repairs, and receives in con¬ 
 sequence a greater rent, an adequate deduction should be 
 made on that account, and the occupier assessed only for 
 the residue. 
 
 Calculating a percentage on the purchase money, hath 
 this advantage in common with that of calculating upon 
 the rack-rent, viz. that where the price is fairly disclosed, 
 the mode of ascertaining the rate is certain. But as the 
 clear rack-rent is always the ground upon which the price 
 of land is calculated, it is at best but another method of 
 rating upon that rent. It is indeed more fallacious, as it 
 must be taken upon a fixed standard of rent, when that 
 which is actually paid may fluctuate from innumerable 
 causes. A further objection may be made, where both are 
 piactised, namely, that they introduce into the same parish 
 three distinct modes of valuing the same species of subject 
 in the same rate! i st, That of price when an estate is 
 bought; 2d, Of rent where it is farmed; and, 3d, Of valua¬ 
 tion as to the fair rent, where it is occupied by the ancient 
 piopiietoi, 01 by a tenant paying less rent than it is worth* 
 
 Independent of these objections to rating by a pe)' cent¬ 
 age on purchase money (which applies to all cases, even 
 where the fee is acquired), it is in its nature more inac¬ 
 curate than a tax imposed on the fair annual return: 
 for it ascertains the value upon the judgment or good for¬ 
 tune of the purchaser, instead of the actual worth of the 
 thing. The rate is* diminished in proportion as the real 
 Value exceeds the price paid, and increased in the same 
 
 ratio 
 
 
201 
 
 Principles and Proportions of the Mate. 
 
 ratio where it is lessi thus taking the buitlien fiom him 
 who has made a lucrative bargain, to impose it upon him 
 who has made one that is unprofitable.' 
 
 But if an interest short of a fee is purchased, this mode 
 of calculation becomes more complicated, and is therefore 
 in danger ot being still more fallacious. 
 
 Where it is agreed that the entire profits shall be rated of ascer- 
 
 by whomsoever enjoyed, it still remains to settle how they ““”,***, 
 
 are to be ascertained. {oTa P artl " 
 
 cular rate. 
 
 According to strict theory, the rate should be raised 
 upon the actual value of the taxable subject duiing the 
 period for which, according to reasonable intendment, 
 the sum levied will supply the poor. 
 
 If this principle was pursued, the farmer (supposing the 
 frates to be made half yearly) would be assessed at a highei 
 proportion during autumn, in which his harvest is ga¬ 
 thered, than in spring, when his land is more expensive 
 in its cultivation, and less productive in letum. The 
 owners of houses at watering places would pay more 
 during the season in which the influx of occasional so¬ 
 journers increases their receipts, than when the town is 
 left to its usual inhabitants. 
 
 But the application of a theoretical principle must be 
 limited by the convenience of society, or it defeats the 
 object for which it is introduced. The natural deficien¬ 
 cies and diversities of the human senses and intellect, ana 
 the variety of avocations and habits of those upon whom 
 it devolves to make the rate, render it impossible for 
 practice to follow to its utmost verge, that clear and 
 steady outline which is marked out by the eye of spe¬ 
 culation. The period for which the fund raised shall last 
 is uncertain, as it depends upon the uncertain demands 
 
2,02 
 
 Principles and Proportions of the Pate. 
 
 of the poor. The incessant investigation of parish officers 
 cannot always lead to an unerring conclusion, and the 
 expences of litigation would exceed any benefit which 
 might result from a more accurate assessment, if it could 
 be attained. 
 
 On annual 
 
 average 
 
 value. 
 
 The best method therefore seems to be, that the annual 
 value of the property should be assumed as the foundation 
 of (.lie assessment. That value also should be estimated 
 not according to the productive return of the particular 
 year in which the rate is made, but according to the fair 
 average thereof, as compared with other lands in the 
 parish Ci h similar quality. Thus lands cultivated with 
 saffi on (i), hops, or teazel, which do not yield an annual 
 crop, should be taxed upon a yearly average struck be¬ 
 tween the producing and unproductive years; lands sown 
 with glass, corn, or such roots and vegetables as give an 
 annual leturn, should be assessed upon the same average 
 annual value, without reference to the crop of the parti¬ 
 cular year. (2)' 
 
 It seems likewise that the value is to be calculated, 
 deducting only the fair annual expences necessary .to 
 render the property productive. (3) 
 
 
 ( 1) Sea Watson v. Tryon, 2 Givill. 
 828. 
 
 t^) That this is the correct mode 
 
 .* . 
 
 of making a rate, see Rex v. Mir- 
 field, 10 past, 219. ante,132. Per Lord 
 Ellenborough, C. J. Rex v. Agar* 
 14 East, 156. post, aoj.n. (2). 
 
 (3) “ It is not enough in those 
 “ oases,” [i. e. the exemption of pro¬ 
 perty from assessment as not being 
 productive] “ to shew that the ex- 
 u ponces laid out in any particular 
 f ‘ year absorbed the profit of that 
 
 “ year, for the benefit of such ex- 
 .“ pences may be derived in future 
 “ years, as is often the case with im- 
 “ provemsnt of farms. If valuable 
 “ land in the neighbourhood of a 
 “ town be covered with buildings in 
 “ one year, the expences of that 
 “ year would probably exceed its 
 “ profits, but the lands would not 
 “ tease to be rateable on that 
 “ account.” Per Lord Ellenbo- 
 rough, C. J. Rex v. Agar, 14 East, 
 264. 
 
 
 One 
 
Principles and Proportions of theHate, 
 
 One objection may be reasonably made to this mode Objection^ 
 of calculating the tenant’s profit of land. It is not founded 0 t- valuing. 
 Upon what he actually makes, but upon what it is sap- 
 posed that he ought to make, according to sober principles 
 of calculation, having respect to the actual state and 
 condition of his farm. It makes no allowance for the 
 difference of industry, skill, and capital, in different 
 
 farmers. 
 
 An assessment on the rent is exempt from this inconve¬ 
 nience, for such deductions would be made from the 
 tenant’s profit, which was not included in the rate when 
 laid upon the rent. But in neither methods is there 
 any allowance for extraordinary deficiencies, from the 
 calamities of a particular season,, or the accidental failure 
 
 of crops. 
 
 A scrutiny of this sort would lead to,all that difficulty 
 and inconvenience, which is felt in rating personal pro¬ 
 perty. Extraordinary contingencies must always give 
 rise to particular relief; but the most effectual remedy 
 against the general objection, will be found in making 
 the valuation moderate; rather below than at the rate of 
 profit which a tenant usually receives. This will com¬ 
 pensate for any accidental excess of the rate beyond its 
 due proportion, in which, as it can rarely occur, the oc¬ 
 cupier will rather acquiesce, than risk the expence and 
 trouble of an appeal. If by these means also some per¬ 
 sons are in a slight degree under rated, it will be such as 
 deserve the bounty, by rendering their farms more pro¬ 
 ductive than those of their neighbours, through superior 
 
 skill or activity. 
 
 It has been already seen, that the rate is to be made 
 upon the present value, and has no reference to specula¬ 
 tive improvements, or the possible application of propel ty 
 to a more lucrative purpose. 
 
 And 
 
204 
 
 Premises 
 falling in 
 value. 
 
 > . 
 
 Profits of 
 
 pleasure- 
 
 grounds. 
 
 Principles and Proportions of the Rate\ 
 
 | * 
 
 And as the value, if enhanced, should be rated; so 
 due allowance should be made where it is lessened, anni¬ 
 hilated, or altered, by culture or neglect, by pulling 
 down ancient buildings, or erecting new ones, for that 
 is no injury to the parish, though the taxes thereby be¬ 
 come heavier to the rest of the parishioners (i). But 
 where land has found an actual value, which is after¬ 
 wards diminished by the voluntary act of the occupier for 
 Jus pa? ticular pleasure, it seems doubtful what deduction 
 he should obtain on that account. 
 
 t ■ * * •, * -«»'*# . c 
 
 Tt is unreasonable that men who from opulence are 
 enabled to devote considerable portions of their land to 
 gardens, hot-houses, deer-parks, and other pleasureable 
 purposes, should not be rated according to the actual 
 value of the fame extent of land in the fame parish of 
 similar quality, which the farmer devotes to the more 
 beneficial object of providing articles of the first necessity 
 for mankind. The principle already stated, that the rate 
 is to be imposed upon the average'annual value, and not 
 the particular produce of the land, may apply in some de¬ 
 gree, but not so strongly as it does to the instances of saf- 
 Ifon, hops, and teazel which have been mentioned. Xn 
 those cases, the occupier is content to forego the profits 
 of one or two years, in order to receive them with advan¬ 
 tage in the second or third. But pleasure grounds are 
 
 (i) Per De Grey, C.J. Kemp ing upon them. The rates must be 
 Spence, 2 Black. 1245. % injury according to the value of the thin* to 
 
 the chief justice means legal injury, berated; and the duties increase ac- 
 It is also observed by Lord Mans- cording to the increase of agriculture 
 field, “ If land undergoes any altera- or improvement. Rex Gardener 
 tion, the assessors must take all the Covvp. 84. See also Rex *. St.Luke’s’ 
 circumstances into their consider- 2 Burr. 1053. where His Lordship’ 
 tion when they are about to fix the seems of opinion, that if the owner of 
 value. It would be an absurd rule lands suffers them to be barren and 
 to say, that lands not covered with unoccupied, they are not liable to b. 
 houses should pay the same as they rated. Rex Bedworth, ante, 1 co. 
 
 •id when the houses were stand- n. (2) 
 
 not 
 
 V 
 
 
V 20 $ 
 
 . Principles and Proportions of the Pale. 
 
 not laid out with a view to a profitable return to the 
 occupier at any time. 
 
 The principle is thus laid down by Lord Ellen- 
 borough, C. J. upon a question of rating the trustees of 
 a Methodist chapel: 44 No doubt the fair average ex- 
 * 1 2 3 4 pences ought to be allowed in estimating the quantum 
 44 of the rate, but not any extraordinary expenditure 
 44 which might happen to make the property unprofitable 
 44 in a particular year: for where it is the subject oi 
 44 annual value, the money so laid out in one year xv ill 
 44 produce profit in the subsequent years. The mode of 
 44 estimating the quantity of profit may be attended \\ ith 
 44 difficulty. 0 It may be asked what profit was received 
 44 in the case of Catherine Hall (i), when the masters and 
 44 fellows had pulled down several houses and converted 
 44 the scites of them into an area for ornament; it may 
 44 be said that they had it in pleasure.” (2) 
 
 1 
 
 In taxing other hereditaments, such as tolls, water- of tolls and 
 works, and coal-mines, of which the produce is tolerably 
 certain, the profits of the last form a fair ground tp esti¬ 
 mate those of the rising year, unless reasons are given to 
 
 increase or reduce it. 
 
 » . 
 
 \ . . 1 
 
 But there is difficulty in cases where the profits are Uncertain 
 dubious, and the amount uucertain, inasmuch as they proHts " 
 are rateable notwithstanding (3). Such are the ranger’s 
 profits from the king’s park; for the rate is prospective(4), 
 and the thing is rateable only when it produces profit (5). 
 
 The assessment must therefore be either made on past 
 profits, contrary to the manner oi rating lands and tehe- 
 
 (1) Rex .v. Gardner, Covvp. 78. (4) Durrant v. Boys, 6 i erm Rep. 
 
 ante. 196. 580., and see G - c - s - ia * 
 
 (2) Rex <v. Agar, 14 East, 262. ( 5 ) Lord Pute ’ v - Grind all, 1 i eras 
 
 (3) Jones v, Maunsell, Doug. $02, Rep. 333? 2 H. Slack. 267. 
 
 ments; i 
 
Principles and Proportions of the Rate. 
 
 / 
 
 ments; or else those which are accruing must be estimated 
 by the average production of former years. 
 
 In pointing out the inconvenience of rating real pro¬ 
 perty by the rack-rent, it has been shewn that the value 
 ot each kind ol property should be justly estimated, not 
 only with reference to its own species, but with regard to 
 all other kind of property existing in the parish, and in¬ 
 cluded in the rate. The same principle applies equally 
 
 to a rate on real and personal property where the latter 
 is assessed. 
 
 Dalton lays it down, that the most reasonable way of 
 taxing land is according to a pound rate; and where per¬ 
 sonal estate, as goods, money, &c. are taxed, it ought 
 to be in the same proportion as the land, viz. the value 
 of every hundred pounds at 5 per cent, per annum. (1) 
 
 I . v 
 
 v ' , /, : l v. 
 
 But as the actual value of different species of property 
 may be affected by very unequal drawbacks on the ground 
 of necessary expenditure, and as the general return of 
 profit varies in different parts of the kingdom, no such 
 
 rule can be laid down with safety as applicable to all 
 parishes. (2) 
 
 The rate 
 must be pro¬ 
 portionate 
 on different 
 kinds of 
 property. 
 
 The relative value of houses and lands in the same 
 parish, vary with local circumstances, even where the 
 rent is the same, for (as has been already stated) some 
 drawbacks of expence may diminish the annual value of 
 the one, which do not adect the other. 
 
 K. B. will The court of king’s bench will not presume that a rate 
 ?e°lative ume is une ^al j yet they will interfere and quash one, when 
 inequality, framed upon an erroneous principle, and the inequality 
 
 (1) Dalton, Just. 123. 
 
 IS 
 
 (a) Rex v. Sandwich, Dough 562. 
 
> 
 
 Principles and Proportions of the Pate. 
 
 Is self evident on its face (i). But a mere difference ill 
 the proportional assessment of lands and houses, or of real 
 and personal property, will not induce the court to infer 
 inequality, or intermeddle with the peculiar province of 
 the quarter sessions, who are to judge of the equality of 
 the rate. (2) 
 
 Thus the court of king’s bench sustained a rate which 
 appeared by the title to be made “ upon all occupiers of 
 “ lands, at three-fourths of the yearly value of the lands, 
 <c and upon all occupiers of houses, at the rate of one 
 " moiety of the yearly value of their respective houses.” 
 For though the yearly value might mean the clear yearly 
 value after all deductions, in which case the rate would 
 be unequal, it may with propriety mean the yearly rent 
 without these deductions, in which case it will not be 
 manifestly unequal, and the court ought to put such a 
 construction upon the title of the rate as will make it 
 good. (3) 
 
 * ■ t ~ • . \ 
 
 So where it appeared by a case stated, that a rate was 
 made upon real property, by assessing a moiety or half 
 part of the rack-rent or yearly value of farms; and upon 
 personal, by taking the 20th part of the stock, personal 
 estate, or money out at interest, and valuing the interest 
 of such 20th part at and after the rate of 4 per cent . per 
 annum , and then rating one moiety of such 20th part 
 equally, or as near thereunto as may be; this is not 
 such an inequality as will induce the court to quash the 
 rate (4). Likewise, where it had been customary to 
 make a distinction in the proportion of the rate between 
 
 (1) Rex v. Audley, 2 Salk. 526. (3) Rex e u. Brograve, supra, 
 Rex v. Brograve, 4 Burr. 2491. S. C. n. (1). The reason,'as given here, is 
 Rex v. Lakenham, 1 Const. 116. made out of both reports, which are 
 PI. 140. not very clearly stated. 
 
 (a) Rex v . Weobly, lb. 102. PI. (4) Rex v. Hardy, Cowp. 579. 
 
 135. Rex v: Barnstable, Fol. 26. 
 tmd the cases, n. (1). 
 
 farms. 
 
I 
 
 n 
 
 Zo t ' Principles and Proportions of the Rate. 
 
 farms, which were assessed at id. in the pound, and dwel¬ 
 ling-houses and cottages only three farthings in the pound j 
 the court of king's bench, on a case stated, afhimed the 
 judgment of the sessions confirming a rate which assessed 
 them all equally at the rate of id. in the pound (i), and 
 the next year confirmed their order for quashing one in 
 the same parish, because made upon the ancient piinciple 
 of different proportions. (2) 
 
 When K. B But, on the other hand, it was decided in one case* 
 will quash ^ere the relative proportion which one species of 
 
 property bears in value to another, is stated to be the 
 foundation of the assessment, and is grossly and manifestly 
 unequal, the court 01 king's bench will quash the rate. 
 Thus w here a rate was made upon a moiety of the yearly 
 value or rack-rent of the real estate, and a 40th part of 
 the interest on the personal, calculated at 4 per ce 7 it. they 
 quashed the order of sessions confirming the rate on the 
 ground of apparent inequality, although the quarter ses- 
 
 v « . • « jr • t 
 
 (1) Rex v. Butler, Cald. 93. of assize, 1683: “ 35. Qu. If a pa- 
 
 (2) Rex -v. Sandwich, PSoug. 562. “ rishioner, or owner within a parish, 
 
 In this case Lord Mansfleld lays it “ do bring into the parish (without the 
 down, that “ the proportion in which “ consent of the parish) a stranger ot 
 “ lands and houses respectively con- <c another parish, which is, or ap- 
 ‘f tribute, must ever depend upon “ parently is likely to be burthensome 
 “ local circumstances; and if nine- “ unto the parish, how may they ease 
 “ tenths of the burthen arise from “ themselves? 
 
 « the houses, such circumstance was “ Resol. By taxing such a one to 
 sufficient to influence the judg- <£ the charge of the rates of the poor, 
 « vnent of the court below in adjust- “ not only having respect to his abw 
 v ing that proportion.” This latter “ lity, or the land he occupies, but 
 position, that the particular species “ according to the damage and danger 
 of property which gave rise to the “ he bringeth to the parish by his 
 greatest burthens upon the rate, “ tolly. Dalt. Just. tit. Poor, c. 73* 
 should be ta)ted in a higher propor- p. 237. cd. 1727. and see Sir Nicholas, 
 tion, seems never to have been follow- Hyde s opinion, lb. 225. 
 ed. It is laid down more equitably in But neither rule seems sanctioned 
 th$ following resolution of the judges by practice, or by any determination. 
 
 * sions 
 
 / 
 
209 
 
 Principles and Proportions of the Pate . 
 
 sions had found in a special case that this mode of rating 
 contained a relative equality.(i) 
 
 It has never been expressly decided whether a rate must Rat ? s on * 
 be made upon the full value of the property in the parish, th^valu^ 
 or whether it may be laid upon a portion of that value, 
 such as two thirds or one half, provided the relative pro¬ 
 portions of value are preserved in all. It appears, how¬ 
 ever, in the cases just cited, and in some others, that 
 such rates have been questioned upon other grounds, and 
 sustained, without any objection made on this account. 
 
 Such a practice is collaterally supported likewise by the 
 opinion of Lord Kenyon, who says, (( whatever the 
 46 proportion of rating in a parish, whether to the full 
 i% value or otherwise , the rate must be equally made on 
 “ all persons (2),” putting it hypothetically that a rate, 
 though not made upon the full value, may be good if 
 relatively equal. There is in reality no difference in respect 
 of the assessment, which ever method is pursued; whether 
 the same sum is raised upon one half, or upon the entire 
 property, the calculation in the pound must increase or 
 diminish in the inverse ratio of the sum upon which the 
 fund is calculated. 
 
 (1) Rex v. Sellers and others. In- (2) Rex v. J^Iast, 6 Term Rep. 
 habitants of If.ckenham, ante, Cald. 154. 
 
 S^- n 
 
 J? 
 
 VOL. I , 
 
( 210 ) 
 
 4 
 
 CHAPTER XIII. 
 
 Of rating Parishes in Aid. 
 
 43 Eli*, 
 c. 2. sect. 3. 
 within the 
 hundred. 
 
 
 r pHE poor are to be sustained by parochial districts 
 in the first instance; but they may sometimes be too 
 numerous and burthensome for a particular parish to 
 support. The 43 Efiz. c. 2. sect. 3. provided therefore, 
 that if the justices perceive that the inhabitants of a parish 
 are unable to levy among themselves sufficient sums of 
 money for the purposes of the act, the said two justices 
 shall tax, rate, and assess as aforesaid, any other of other 
 parishes, or out of any parish, within the hundred where 
 the said parish is, to pay such sum and sums of money 
 to the churchwardens and overseers of the said poor 
 parish, for the said purposes as the said justices shalf 
 think fit. 
 
 Out of it. But if the said hundred shall not be thought by the 
 said justices able and fit to relieve the said several parishes 
 unable to provide for themselves as aforesaid, then the 
 justices of the peace at their general quarter sessions, or 
 the greater number of them, shall rate and assess as 
 aforesaid, any other of other parishes, or out of any parish 
 within the said county for the purposes aforesaid, as in their 
 discretion shall seem fit. (1) 
 
 -By two jus- Whenever there is any person or parish within the 
 
 the hundred, hundred in which the parish unable to maintain its poor 
 is situate, of ability sufficient to supply the deficiency, the 
 rate in aid is to be made by two justices. They have 
 
 (rj The power is given to justices of limited jurisdictions, by 43 Eli*, c. %. s.S. 
 
 power 
 
Of rating Parishes in Aid , 
 
 2J X 
 
 power to determine the inability of the parish which ap¬ 
 plies for assistance, and the capacity of .those upon whom 
 they make an order to contribute. Reported cases furnish 
 no rules to guide their discretion in this particular further 
 than that in one parish, where the rates amounted to 25s. 
 in the pound, and were gradually on the increase, and 
 the parishes called upon to contribute were moderately 
 assessed, it was taken for granted at the bar to be a case 
 in which two justices might interfere. (1) 
 
 ■' , • rM ' i. ^ 
 
 According to the words of the statin e, this rate could in aid of 
 be made only in aid of a parish; but it has been de- a viU ’ 
 termined, that since the 13 & 14 Car. II. chap. 12. 
 one may be likewise made in favour of a vill which 
 maintains its poor, as being within the equity of the 
 act. (2) 
 
 But although it was doubted whether a vill which sus- Made upon 
 tained its proper poor, could call upon other districts to a '’ f 1, or t .„ 
 contribute, it is evident from the words of the act, that place. 
 2 (3)5 or tithing (4), or extra-parochial place (5), 
 
 which is within the hundred, and of competent ability, 
 may be rated in aid of a parish unable to support its poor. 
 
 ✓ 
 
 *1 he jurisdiction of two justices extends not only over 
 an hundred, when so denominated expressly, but also 
 over any other division which is called by a name synony¬ 
 mous or equivalent, as being equally within the intention 
 of the act, although it uses the word “ hundred” only. 
 
 (1) Rex n, Hoibeach, 4 Term 
 Rep. 778. 
 
 (z) Anon. fol. ZJ-, which was the 
 case of two vills within the same 
 paiitlr, and an order upon one to con¬ 
 tribute to the other. Per Lord Kenyon 
 and Buller, J. Rex v. Holbeach, sup. 
 K. j. See also a case of two parishes 
 
 incorporated by 32 Geo. III. c, 99. and 
 one rated in aid of the other. Rex r v. 
 St. lielen’s, Worcester, z East, 417. 
 
 ( 3 ) lb. 
 
 (4) Rex v. Milland, 1 Burr. 57 6. 
 
 (5) Rex «z/. Clarendon Park, 16 
 Vin. Abr. 431, Rgx •v. Boroyghfen, 
 Fol. 37. 
 
 2 
 
 Justices 
 may rate 
 within what 
 is substan¬ 
 tially an 
 hundred, 
 though call 
 ed by an¬ 
 other name, 
 
 Thus, 
 
T 2 Of rating Parishes in Aid. 
 
 Thus, where two justices made an order for rating, the 
 tithing of Milland, in aid of the parish of St. Peter’s in 
 the same county, which was confirmed at the sessions, 
 who stated upon their order, “ that the tithing of Milland 
 “ lies in the same liberty of the soke with the said parish 
 “ of St. Peter’sit was objected in the court of king s 
 bench, that it does not appear that the places are within 
 the same hundred, as required by 43 Eliz - c - 2 -> for ' 
 liberty and soke are vague terms, not equivalent to the 
 known legal term “ hundred,” and a liberty may extend 
 into several hundreds. The court sent the case back to 
 the sessions to be more particularly stated : but it ap¬ 
 pearing on the return to be substantially an hundred, 
 though called by another name, they confirmed both or- 
 
 ders. (i) 
 
 But not But two justices can make no order in aid of parishes 
 
 where no on places where there are no hundreds or equivalent 
 kUndKd ’ divisions. Such an order setting forth that the two parishes 
 
 were within the county of the city of Norwich, without 
 stating that they were within the hundred, was quashed 
 
 for this defect. (2) 
 
 „ r the poor Neither can they rate a parish within their jurisdiction 
 i n aid of one that is not, although both are situate within 
 risdiction. the hundred. As where a rule called upon two justices 
 for the county of Worcester, to shew cause why a man¬ 
 damus should not issue, commanding them to tax and 
 assess some parish within the hundred of Hall-Shire, 
 within the said county, in aid of the inhabitants of that 
 part of the parish of Dodderhill which lies in the borough 
 of Droitwich, in the said hundred and county, to the 
 support of their poor. It appeared on the affidavits, that 
 part of the parish is within the borough and part without, 
 
 (Rex v.Milland, I Burr. 576. 
 
 ( t) St. Benedict v. St. 
 II Mod. 26J. to!. 4J. 
 
 Peter's, 
 
 but 
 
Of rating Parishes in Aid. , 213 
 
 but that both are within the hundred of Half-Shire, and 
 the county of Worcester. It was admitted, that the bo¬ 
 rough of Droitwich is an exclusive jurisdiction, with a 
 non-intromittant clause as to the justices of the county, 
 who therefore had no authority to enter the borough (1). 
 
 That the part of the parish of Dodderhill within the bo¬ 
 rough, had immemorially maintained its own poor, and 
 had distinct overseers, and was at present unable to main¬ 
 tain its poor. But the court discharged the rule, being 
 of opinion that the magistrates had no jurisdiction to do 
 what was required of them. 
 
 For the section of the act says, 44 that if the justices 
 “ perceive that any of the inhabitants of any parish are 
 46 not able to levy among themselves sufficient sums, &c. 
 
 44 the said two justices shall and may tax, rate, and assess 
 44 any other of other parishes,” &c. Having the allow¬ 
 ance of all assessments, and the superantendance of the 
 overseers’ accounts, the legislature presumed, that the jus¬ 
 tices would have the means of knowing the necessities of 
 all the parishes within their jurisdiction. But they cannot 
 have an opportunity of knowing the circumstances of 
 those districts which lie out of their jurisdiction; and 
 therefore to provide for all cases that might happen, the 
 eighth section of the act was introduced, which gives the 
 same power to borough justices, that was before given to 
 county justices. So that in all cases, the acts of magi¬ 
 strates are to be confined within the limits of their re¬ 
 spective precincts. 
 
 There is one difficulty, indeed, in a case where a bo- Where on* 
 rough consists only of one parish. But the argument exclusive 
 drawn thence, to shew that the county magistrates must jurisdiction, 
 of necessity interfere, proves too much, tor there are in- the a«t. 
 stances of such towns being counties in themselves; e. g. 
 
 (1) Talbot v. Hubble, 2 Str. 1154. Rex v. Sainsbury, 4 Term Rep 45. 
 
 p 3 the 
 
214 
 
 Rate, on 
 
 whom made. 
 
 \ 
 
 Justices are 
 to assess the 
 quantum. 
 
 Overseers 
 may collect 
 the rate. 
 
 Qf rating Parishes in Aid. 
 
 the borough of Caermarthen; but in such a case it is ini* 
 
 O J 
 
 possible to say that the justices of the adjoining county 
 can interfere. (i) 
 
 - / < ; 
 
 When the assessment is judged necessary, it may be 
 imposed in one of two ways: 44 the justices may tax par- 
 44 ticular persons in aid to that parish which cannot re- 
 44 lieve its own poor (2); or they may assess the whole 
 44 parish in a certain sum, and leave it to the church- 
 44 wardens to levy the same on particular persons.” (3) 
 
 j - * N 1 * . * V ' 
 
 The last is recommended as the least harsh and unrea¬ 
 sonable, and is equally applicable to parishes and extra- 
 parochial places. (4) 
 
 The justices are themselves to make the rate, and can¬ 
 not delegate their power to others. An order of two 
 justices, directing the churchwardens of St. Peter and 
 St. Paul to assess, raise, and levy sixty pounds for the 
 maintenance of the poor of the other parish, was quashed 
 on this account (5}. But if they had assessed the parti¬ 
 cular sum, it would have been good. As where two 
 justices made an order that two parishes in Colchester 
 should pay relief to the poor of a third, viz. the one five 
 
 (1) Rex v. Holbeach, 4 Perm Rep. 
 
 778. 
 
 (2) Anon. 1 Vent. 250. Skin. 259. 
 Fol. 40. Rex v. Boroughfen. 1 Eott, 
 
 PI- 433- 
 
 (3) Case of St. Rumbald’s Parish, 
 Skin. 258. Rex tv. Eastchvuch, 2 Salk. 
 480. Rex v. Boroughfen, Fol. 437. 
 Rex -v. Knightly, Comb. 309. Rex v. 
 Holbeach, ante, n. 1. and per Boiler, J. 
 Ibid. The words in the text are given 
 to Lord C. J. Holt, Rex v. Eastchurch. 
 But it seems hard, if the rate cannot 
 be made upon the entire ability of the 
 contributing parish, as is done in 
 Treking its own poor’s rate, but that 
 
 it must in all cases be made upon par* 
 ticular persons. In Rex v. Borough¬ 
 fen, ut supra, the judges were of ©pi¬ 
 nion, that an order on particular per¬ 
 sons would he hard and unreasonable, 
 since particular persons of other pa¬ 
 rishes would he much exposed to the 
 mercy of the justices; and that such 
 a power was hardly to be trusted with 
 them ; for they may rate some, and ex¬ 
 cuse others altogaiher as well able to 
 pay. But the words of the statute 
 are very strong. 
 
 (4) Rex v. Boroughfen, Fol. 37 * 
 
 (5) Case of Parish qf St. Peter and 
 St. Paul, 2 Str. 1114. 
 
 skillings 
 
 l 
 
Of rating Parishes in Aid, 215 
 
 shillings a week, and the other eight shillings a week; 
 and that the overseers should collect it. This order was 
 held well enough, and according to the right course; 
 for the justices are only to assess the quantum, and the 
 rate is to be made by the overseers of the poor of the 
 parish. (1) 
 
 The order must therefore state a sum certain (2), and Fo r™ 
 
 . . v n ortyr. Sum 
 
 one requiring the contributory parish to make a rate at specified, 
 sixpence in the pound, was held ill for uncertainty on 
 that account. (3) 
 
 This contribution is to be made only so long as the 
 inability continues; an order therefore for the parish of 
 St. Peter to pay to the officers of St. Mary, twenty 
 pounds weekly “ till we the said justices shall see fit to 
 r,i order the contrary,” is bad; for it may be a perpetual 
 order, which the justices have no authority to make ; 
 since, if one of the justices die, or is removed, no other 
 can alter it (4). But if made for a specified sum per Time spe- 
 week (5), or month (6), or so much yearly (7), or a ° Esd ' 
 sum in gross to be levied for the whole year, it is suffi¬ 
 cient. (8) V - 
 
 It should appear on the face of the order, that the Liability 
 parish which prays aid of another is unable to maintain ad i ud s ed * 
 
 (1) Case of St. Rumbald’s Parish, 
 Skin. 258. 
 
 (2) Rex v. Knightly, Comh. 309. 
 Case of Parish of St. Peter and St. 
 Paul, supra, 165. n. (5) 
 
 (3) Rex v. Telscombe, I Stra. 314, 
 
 (4) Case of the Borough of Marl¬ 
 borough, 16 Vin. Abr. 431. 1 Stra. 
 
 700. But an order of sessions , that 
 the defendant should pay 2s. per week 
 towards the support of his father, till 
 that court should order to the contrary, 
 was held good, because it was indefi¬ 
 
 nite, and no set time limited; and if 
 an estate happened to fall to him, they 
 might apply to the said justices. Jen- 
 kin’s case, 2 Salk. 534. 
 
 (5) Case of St. Rumbald’s Parish, 
 supra, n. r. 
 
 (6) Rex St. Helen’s in Worces¬ 
 ter, 2 East, 4t 7. 
 
 ( 7 ) Rex v. Little Glen, Comb. 
 241. 
 
 (8) Rex v. Knightly, ut supra. 164. 
 n. (2) Rex v. Boroughfen, Fol. 37. 
 
 P A 
 
 i 
 
 / 
 
 its 
 
 1 
 
may 
 
 Of rating Parishes in Aid. 
 
 its poor; and there must be an assertion and adjudication, 
 that it appeared so to the justices who make it (i). There¬ 
 fore, where there were two vills in one parish, and the 
 order recited that one of the vills was very rich, and the 
 other very poor, and that the vill that was rich did not 
 pay half so much to the poor as the poor vill did, it was 
 quashed for uncertainty (2). But it need not pursue the 
 very words of the statute, where the allegation is sub¬ 
 stantially the same. Thus an order of sessions, stating 
 that the parish “ was oppressed ,” was adjudged well 
 enough, for it implies inability. (3) 
 
 It has been decided also, that it should appear by the 
 order, that the place on which the* rate is made is not 
 within the parish in aid of which it is assessed, and that 
 this is necessary, although the names of both appear on 
 the face of the order, and are different (4). So also, that 
 both parishes are within the same hundred. (5) 
 
 Several persons, who reside in different parishes, or 
 several parishes, if within the same hundred, may be 
 rated at the same time by distinct orders to the relief of 
 the same district. It may be supposed from the expres¬ 
 sions used in some cases, that the justices can rate the 
 entire hundred; but what seems meant is, that they may, 
 when necessary, rate every parish, vill, or extra-parochial 
 place, which constitute the hundred, if of ability to con¬ 
 tribute, for it is no where distinctly laid down that they 
 can rate the hundred generally eo nomine. 
 
 (1) Cobbet -u. St. Mary Lincoln, 
 16 Vin. Abr. 431. But see case of 
 Borough of Marlborough, 16 Vin. 431. 
 
 (2) Anon. Fol. 25. 
 
 (3) Rex v. Little Glen, Comb. 241. 
 
 (4) Rex v. Boroughfen, Fol. 36. 
 I Barnard. B. R. 2. But query this 
 case ? In Rex v. St. Helen’s, Trim 
 42 Geo. III. it was cited to this point, 
 when Lord Ellenborough, C. J. ob. 
 
 served, that the diversity of name, irn* 
 ports a diversity of place, unless the 
 contrary is shewn, MSS. And if it 
 xvere a vill maintaining its own poor, 
 although within the parish, the order 
 would be good if that was made to ap¬ 
 pear. See ante. 
 
 (5) Case of Boroughfen, Fol. 37. 
 St. Benedict v. St. Peter’s, ^11 Mod. 
 269. 
 
 The 
 
217 
 
 Of rating Parishes in Aid . 
 
 The justices, at their general quarter sessions, are to Rate, by 
 assess any other of other parishes, or of any parish within the SCSSJ0Uj ’ 
 the said county, where the hundred is unable to contri¬ 
 bute to the relief of the incapable parish. They have 
 jurisdiction, not only when the hundred is thus incom¬ 
 petent, but likewise where the place praying aid is not 
 situated within any hundred or equivalent division. 
 
 Thus an order w r as made by two justices to assess the 
 parishes of St. Stephen and St. Magdalen in Norwich, 
 in aid of the parish of St. Benedict, which was not able 
 to maintain its own poor. It was objected, that the 
 parishes being in Norwich, where there was no hundred, 
 the justices had no jurisdiction; and for this reason the 
 order was quashed. But per Powel J., this is not a casus 
 omissus out of the statute; and though the two justices 
 have not power, here being no hundred, yet the sessions 
 have a jurisdiction, and may tax the county of the city 
 in part, or at large; to which the rest agreed. (i) 
 
 As the pow r er of tw r o justices is confined to the hun¬ 
 dred, within which the parish is situate, so the original 
 Jurisdiction of the quarter sessions is limited to places out 
 of it. (2) 
 
 Therefore, where the sessions made an original order 
 to this effect; “ it appearing to this court that the parish 
 “ of Dunchurch, in the hundred of Worth, being over- 
 “ burthened with poor; and that the parish of Eastbridge, 
 “ within the same hundred of Worth, having no poor 
 u relievable within the said parish, it is ordered, that the 
 “ said parish of Eastbridge be from henceforth annex- 
 “ ed to the said parish of Dunchurch; and that the 
 “ occupiers of lands and tenements within the said pa- 
 <c rish of Eastbridge be chargeable and contributory to- 
 66 wards the relief of the poor of the said parish of Dun- 
 
 Sessions 
 can’t make 
 an original 
 order upon 
 a parish 
 within the 
 hundred ; 
 
 (i) St. Benedict’s v, St. Peter’s, 11 
 Mod. 269. 
 
 (2) Per Eyre J. Rex v. Perceval, 
 I Str. 56. 
 
 u church. 
 
218 
 
 »or annex 
 one parish 
 to another. 
 
 Governed 
 l-.y same 
 rules in 
 making or¬ 
 ders without 
 the hundred 
 as justices 
 within. 
 
 Of rating Parishes in Aid . 
 
 <l church, the sum of twenty pounds a-year, so long as the 
 44 said parish shall be overburthened, and no poor within 
 44 the said parish of Eastbridge.” It was moved to quash 
 this order on two grounds: ist, That it is an original 
 order, which the sessions cannot make; 2d, That justices 
 have no power to annex parishes one to the other, which 
 is in the nature of an act of parliament; and the order 
 was quashed for the first reason. (1) 
 
 As the power of assessment is granted to two justices, 
 and to the quarter sessions in the same words, the exer¬ 
 cise thereof seems governed by the same rules in both 
 cases; and decisions respecting the former, equally apply 
 to cases occurring under the latter. Thus, where a rate 
 is made by the quarter sessions upon parishes of another 
 hundred than that in which the incapable parish is 
 situated, the parishes within the hundred must appear 
 to be, and must be adjudged by the sessions, unable to 
 contribute. 
 
 j 
 
 / • ‘ 
 
 But they may make their order, “ taxing certain pa- 
 54 rishes in the hundred of A. in aid of the parish of B. 
 “in the hundred of C.,” although two justices have not 
 previously inquired whether any parish in C. can contri¬ 
 bute ; and this, notwithstanding that the act gives power 
 to the sessions only, if the hundred shall not be thought 
 by the said justices able and fit to relieve, &c. “ For the 
 
 44 inquiry would be useless, since, if two justices made 
 64 such an adjudication, the sessions must still inquire in- 
 44 to the truth of it. If no order appear, charging any 
 44 parish within the hundred, it is a sufficient ground 
 “ for the sessions to act. If two justices had charged any 
 44 parish within the hundred, it would have stopped the 
 
 (1) Rex v. Eastchurch.j Mod. 397. « annexing of parishes void, and the 
 2 Salk. 480. According to the report « rest good but they took time to 
 in Salkeld,the court were inclined to advise, 
 consider “ so much as concerned the 
 
 « 
 
 
Of rating Parishes in Aid . 219 
 
 “ sessions from proceeding. The sufficiency of the hun- 
 “ dred depends on this, whether two justices have ever 
 “ charged the hundred. If the said hundred shall not he 
 u thought hy the said justices ahle-> that is, if the two jus- 
 “ tices do not adjudge it so. It two justices should ad- 
 u judge the hundred not able, yet if other two justices 
 “ adjudge the contrary, their charge would be good, and 
 “the sessions be ousted of their jurisdiction (1), not- 
 « withstanding the first adjudication.” (2) 
 
 But though the sessions have no original jurisdiction Appeal to 
 within the hundred, an appeal lies to them from the 
 justices’ order, by which its propriety may be questioned. 
 
 The sessions may state a case for the consideration of Case for 
 the superior court, not only upon any point arising in an 
 appeal, but also where they act by virtue of their original 
 jurisdiction. 
 
 And it seems, that if they quash an order of justices, Power to 
 they have power to make a new one within the hundred, 0 ^j na i > ot ^ 
 in the same manner as they "were enabled to make a new der quashed, 
 parochial rate prior to 17 Geo. II. (3) 
 
 Should the justices in or out of quarter sessions refuse Mandamus 
 to make an order of this kind, the remedy is by applica- 
 tion for a writ of mandamus to the court of king’s bench; 
 and it is immaterial, although the rule to shew cause 
 command them to rate and assess a paiticulai paiish, in¬ 
 stead of commanding them to hear the complaint. But Its Forra - 
 the form of the mandamus, if it is granted, should be to 
 compel them to inquire, in the first place, whether the 
 parish stands in need of any assistance, and to act accoid- 
 
 jngty- (4) 
 
 (1) Id est, “ original jurisdiction.” most ef the cases upon this p.irt of the 
 
 (2) Rex'v. Percival, i Str. 56. poor laws seem to be. 
 
 (3) Rex v. Inhabitants of Little (4) Rex v. Holbeach, 4 Term 
 Glen, Com. 241. But the case is re- Rep. 77 ^ 
 
 ported in a very slovenly manner, as 
 
220 
 
 / 
 
 The return. 
 
 of rating Parishes in Aid, 
 
 \ f * 
 
 To this mandamus, as a writ of right, there must be 
 a return (i), the propriety and truth of which may be 
 examined by the court in the manner already discussed, 
 when treating of the appointment of overseers. (2) 
 
 (1) Rex v. St. Mary’s in Marlbo- (2) Ante, p. 36. 
 rough. 2 Shaw’s Pract. Just. 47. 
 
 16 Vin. Abr. 416. 
 
 / 
 
( 221 ^ 
 
 
 V 
 
 CHAPTER XIV. 
 
 /# % 
 
 Of levying and distraining for the Poods Rate. 
 
 BY 43 Eliz. c. 2. s. 4. if the rate and all arrearages be 
 ^ not paid voluntarily, present and subsequent church¬ 
 wardens and overseers may levy them by distress and 
 sale of the offender’s goods; and in defect of such distress, 
 he may be committed to the county goal. By 17 C*eo II* 
 c. 38. s. 11. succeeding overseers were empowered to 
 levy arrears previously incurred, and to reimburse their 
 predecessors out of the money levied, such sums as they 
 had expended for the poor’s use, and which are allowed 
 to be due to them in their accounts. 
 
 Before any step is taken to enforce payment under Demand of 
 these statutes, the rate must be lawfully demanded (1). 
 
 And if the person liable should die after such demand, 
 and before further proceedings, it seems the bettei opinion 
 and safer practice to demand it likewise from his personal 
 representatives (2.) If the money is tendered by any 
 
 (0 Semb. Bolt, C. J. East (Rate), states a demand made befort 
 India Company v. Skinner, I Bott. the summons issues. 
 a49.Pl.ajo. snd seepost. 17*. A (2) Stevens v. Evans, a Burr 
 
 summons to appear before the magi- nja. It remains however undecided 
 
 strates, may possibly amount to a suf- whether,as the statute gives no au- 
 fiejent demand,, if the party attends thorny but to distrain the goods of the 
 and refuses payment, or neglects to offender, the goods of the person as- 
 appear before them. But it is un- sessed to the rate could oe charged 
 necessary to add, that it is more hu« after his death in the hands of his re- 
 mane at least, to make a previous de- presentatives. Stephens v. Evans, 
 tnand, without which, the Justices do when Dennison and Wilmot, J. seemed 
 not seem called upon to issue their to incline to different opinions, a Burr, 
 summons. The form of the warrant 1152. 1 Black. Rep. 284- ^ allis Adrn. 
 of distress in 3 Burn’s Just:, tit. Poor *iy H«wit, cited Jb, 
 
 1 
 
 other 
 
222 
 
 Of levying and distraining 
 
 Application 
 to magis¬ 
 trates. 
 
 Justices 
 hiving pro¬ 
 perty in the 
 parish, em¬ 
 powered to 
 act. 
 
 Geo. II, 
 c. 18. , 
 
 other than the person rated, as by the landlord on his 
 tenant’s account, it must be received. (i) 
 
 No action of debt will lie for a poor’s rate (2), there¬ 
 fore where payment is refused, the overseers should ap¬ 
 ply to two magistrates of the county or place in which the 
 district is situated for which the rate is made. This is 
 usually done at what is called a petty sessions, which are 
 periodical meetings of magistrates who reside within a 
 convenient extent of country, subject to their jurisdiction, 
 and are held weekly or otherwise for the discharge of 
 such duties as require the conjunction of at least two ma¬ 
 gistrates to perform. 
 
 According to the universal principle of the common 
 law, a magistrate who was liable to be rated for property 
 in the parish, was prohibited from acting in its concerns, 
 as being incidentally connected with his private 'inte¬ 
 rests (3). But this interest being remote and trifling, 
 and the inconvenience of sending parties from their homes 
 in search of other magistrates very great, the 16 Geo. II. 
 c. 18. s. 1. enables justices to act (among other things 
 appertaining to their office, so far as the same relates to 
 the laws, for the relief, maintenance, and settlement of 
 poor persons) in all matters concerning parochial taxes, 
 levies, or rates, in any parish, notwithstanding that they 
 are rated to or chargeable with the taxes, levies, or rates, 
 within such parish, &c.; but it excepts the power to act 
 in the determination of appeals at the quarter sessions, in 
 matters relating to the parish. 
 
 It was formerly necessary, that magistrates should not 
 only be in the commission for that particular county or 
 
 (1) Rex v. Cozens, Doug. 446. (3) See post, vol. ii. 
 
 (a) Per Dennison, J. Stephens v. 
 
 Ivans, a Burr. 1152.1 Black.Rep. 484. 
 
 4 plac« 
 
 1 
 
223 
 
 for the Poor's Rate. 
 
 place for which they act; but also, that they should be 
 locally present within the limits oi their jurisdiction at 
 the time of acting. 
 
 But the latter part of this rule is dipensed with, for 
 the purposes oi general convenience, by a modern sta¬ 
 tute (r). Where a justice acts for two or more counties, 
 being adjoining counties , and personally resides in one ot 
 them, any magisterial act of his, done in any one of them, 
 shall be valid as if done in that county to which it par¬ 
 ticularly relates. 
 
 If the magistrates should refuse to hear the overseers’ 
 information or complaint, the court of king’s bench will 
 direct a mandamus to compel them to do so (2), 01 they 
 will orant a criminal information where they ha/e coi- 
 ♦ ruptly refused. (3) 
 
 If the mandamus is disobeyed, the court will enforce 
 obedience bv attachment. 
 
 When the justices entertain the information, their first 
 duty is to summon the party, or in case of death, his per¬ 
 sonal representative, to hear them upon the complaint. (4) 
 
 1 > ^ ' 
 
 This summons should state the nature of the charge, 
 and require the parties to appear at some certain place, 
 and at such convenient time, as is sufficient for them to 
 make appearance and defence ($)• It was the practice 
 formerly to grant a conditional warrant in the fiist in- 
 stance-to distrain in case of non-payment (6); and in a 
 reported case, a mandamus was directed to justices to 
 
 (1) 28 Geo. c. 49. s. 1. ( 5 ) See the form, 4 Burn’s Just . ) 
 
 (2) Rex-y. Bering Term Rep. 198. tit. Poor. (Rate). 
 
 (3) Rex v. Cozens, Doug. 426. (6) Pvex v. Boroughfen, Foley, 37. 
 
 (4) Rex v . Benn, ut supra, n. 2. . 
 
 Stevens v, Evans, 2 Burr. 1152. 
 
 sign 
 
 X . 
 
 Not residing' 
 in the coun¬ 
 ty, 28 G.III. 
 c. 49 - 
 
 Mandamus. 
 
 Summons,- 
 

 224 
 
 Of levying and distraining 
 
 sign a warrant of distress for levying the poor’s rate with¬ 
 out summoning the party (i). It was conceived, that 
 granting such a warrant was a ministerial act, like the 
 allowing a rate; and that it would be useless for magi¬ 
 strates to call a party before them, and hear a defence 
 which they had no power to allow. Besides this case, 
 many similar writs of mandamus were shewn to have issued 
 from the crown-office in the first instance, neither stating 
 the parties to have been summoned, nor requiring the 
 justices to summon them. But the court of king’s bench, 
 upon mature deliberation, disregarded these precedents; 
 because a distress to levy this rate is in the nature of an 
 execution. The justices must, therefore, exercise a dis¬ 
 ci etion of inquiring into tiie circumstances, and it is of 
 course necessary that a summons to the person who re¬ 
 fused to pay should precede it: « For it is an invariable 
 maxim in our law, that no man shall be punished until 
 1 k as an opportunity of being heard; whereas, if a 
 warrant of distress were to be issued without any pre- 
 ‘ vious summons, the party would have no opportunity 
 
 “ of shewing cause why the warrant should not issue 
 “ against him.” (2) 
 
 As magistrates are civilly answerable where they issue a 
 warrant of distress illegally (3): this rule is not less for 
 
 (1) Rex V. Justices of Middlesex, 
 I Const. 250. PI. 255. 
 
 (2) Rex v. Benn,6 Term Rej>. 198, 
 Harper v. Carr, 7 Term Rep. 270. 
 The form of the rule for the manda¬ 
 mus, ns settled in Rex it. Benn, was 
 “ To receive such information and 
 “ complaints as have been ®r shall be 
 “ duly laid before them, against such 
 w persons as have neglected or refused 
 
 3 
 
 “ or shall neglect op refuse to pay tlia 
 “ sime respectively assessed on them 
 “ b Y a certain rate or assessment, made 
 
 ‘“on --last, for the relief of 
 
 “ the poor of—-, in the coun- 
 
 “ ty 0! , and to proceed there- 
 
 “ u P on t0 lev y said several sums. 
 
 ( 3 ) Harper v . Carr, supra, n. (1), 
 Nutting v. Jaclcson, Loft, 249. 
 
 their 
 
•/ 
 
 for the Pool’s Rate . 
 
 rj - 
 
 their benefit, than it is for that of the person whose goods 
 are liable to distress, where he neglects to pay his rate. 
 
 The proceedings before the magistrates being in the service of 
 nature of a civil execution (i) for the purpose of levying Summons, 
 the assessment, personal service of the summons seems 
 unnecessary; and it is sufficient to leave it with some in- 
 mate of the defendant’s at the house where he usually re¬ 
 sides. But if the object be to commit him to prison as 
 an offender in default of a distress, it will be the fairest 
 way to serve it personally. 
 
 The party being thus served, either refuses to obey, when party 
 or appears in conformity to the tenor of the summons. If 
 he does not appear, or offer such a satisfactory excuse as 
 ought to induce the magistrates to postpone the hearing 
 until another time, the warrant of distress should issue 
 upon proof of service of the summons. But if there be 
 any just reason to suppose that granting the warrant may 
 subject the justices to an action, such as, that the rate is 
 void for any cause; as, for instance, that the place for 
 which it is made is without their jurisdiction; they may 
 require the parish officers to shew that their act in grant¬ 
 ing the warrant will not be illegal. But they can inquire 
 no further than is necessary for this purpose, since they 
 are civilly answerable in no other cases to persons who 
 may be aggrieved by their warrant. 
 
 If the defendant appears, he may shew for cause why Causes to be 
 the warrant should not issue, any thing which amounts to 
 payment, as, that the sum at which he stands rated has ing the war- 
 been tendered by him, or by some person on his behalf, u p a y men t. 
 and refused, and that he or they are still ready to pay 
 it (2). That he has paid the assessment to one of the 
 parish officers, who has not accounted for it. (3) 
 
 (1) Ante, 224. 
 
 (2) Rex v. Cozens, Dou^ 426, 
 
 VOL I. 
 
 (3) Per Lord Kenyon, Rex v. 
 Benn, 6 Terra Rep. ip8. 
 
 e He 
 
 j 
 
226 Qf levying and distraining ' 
 
 Nullity He may also urge any, circumstances which shew the 
 of iVte ‘ rate to be a nullity, into which the magistrates might in¬ 
 quire of their own accord. Such as, that public notice 
 has not been given of the rate in the church on the next 
 Sunday after it was allowed by the justices (i). That the 
 place for which it was made is not within their jurisdiction, ' 
 or that it is not made for the proper district (2). That 
 the subject for which he is assessed is not by law rate¬ 
 able (3). That he is not liable to the rate, either as not 
 being the occupier at all (4) or as being a rateable 
 occupier (5). For if the rate is void, those who are rated 
 may treat /it as a nullity; and the warrant being illegal 
 where the assessment is so, the magistrates are not com¬ 
 pellable to issue one even by mandamus; and the court 
 will not grant the writ for that purpose, since it would be 
 no justification in an action of trespass brought for a dis¬ 
 tress taken under the warrant. (6) 
 
 But not an 
 overcharge. 
 
 But no other circumstances can be inquired into at this 
 hearing, excepting such as amount to payment, or prove 
 that the rate is a nullity. The quantum, or any over¬ 
 charge in the rate, is only to be controverted by an ap¬ 
 peal to the quarter sessions. If the defendant omits to 
 dispute it there, he is supposed in legal construction to 
 have acknowledged, the propriety of his assessment; 
 neither can the magistrates refuse their warrant, from the 
 party’s utter inability to discharge his quota, although it 
 may be a good ground for appealing against a rate made 
 upon him, for personal property. (7) 
 
 (x) Rex v. Newcomke, 4 Term 
 Rep. 368. 
 
 (2) Nicholas v. Walker, Cro. Car. 
 394. Rudd v.. Foster, 4 Mod. 157. 
 Peart •y. Westgarth, 3 Burr. x6io. 
 Rex i>. Justices of Gloucester, cited in 
 Harper v. Carr, 1 Term Rep. 270. 
 
 (3) Jones v. Maunsell, Doug. 302. 
 Lord Bute v. Grindall, Term Rep. 
 338. 2 Hen. black. 267. 
 
 (4) Milward •v. Coffin, 2 Black. 
 1331 - 
 
 (5) Lord Amherst v. Lord Somers, 
 2 Term Rep. 372. 
 
 (6) Rex v. Newcombe, 4 Term 
 Rep. 368. 
 
 (7) Per Lord Mansfield, Rex v. 
 Uffculme, 2 Const. 3 Edit. 233. PI. 
 262. ante, 68. n. (4) 
 
 • / V V 
 
 I 
 
 J 3 
 
 For- 
 
227 
 
 c % 
 
 for the Poor's Pate. 
 
 formerly, if notice of appeal was given, it took away 
 the magistrate’s jurisdiction to distrain until the appeal 
 was either abandoned or decided; but now, by 41st 
 Geo. III. c. 23. s. 1. the justices may proceed to recover 
 by distress, so much only as the person then rated, or any 
 
 other occupier of the premises was rated in the last effec¬ 
 tive rate. (1) 
 
 The justices do not act ministerially, but have discre¬ 
 tionary power to grant or refuse the warrant (2). But 
 wheie no sufficient cause is shewn against granting it, 
 they must issue it. 
 
 * < r 
 
 The assessments in a legal rate become due from the 
 moment that it is allowed and published; and mav be 
 demanded, and the warrant granted before the time has 
 expired for which the rate is made. (3) 
 
 A general warrant of distress is not sufficient (4). It 
 must state specially the name of the person upon whose 
 
 1 
 
 (1) The act, which is drawn with 
 great care and accuracy, extends to 
 rates upon personal as well as real pro¬ 
 perty. The former can be laid only 
 on the person, and is comprehended 
 under the first provision, “ than the 
 “ person so rated shall have been rated 
 “ in the last effective rate.” But as 
 real property may have been occupied 
 before making the rate appealed against, 
 the act requires the appellant to pay the 
 contribution to which his predecessor 
 submitted or was adjudged liable, and 
 exempts him from an immediate ad¬ 
 vance of any surplus which may be 
 supposed^he fairground of his appeal. 
 
 When premises have been rated as an 
 undivided subject of occupation, and 
 are afterwards split into distinct hold- 
 
 Q 2 goods 
 
 ings, and there is an appeal against a 
 rate by which they are thus for the 
 first time assessed, it seems as if no 
 remedy was provided for apportioning 
 the rate, or recovering the respective 
 proportions of tl;e old assessment due 
 from each of the new tenants previous 
 to the determination of the appeal; 
 and this would scarcely have been 
 practicable, as the amount of their 
 several quotas may be the ground of 
 appeal. 
 
 (a) Per Lawrence, J. Harper v, 
 Carr, 7 Term Rep. 270. 
 
 (3) Charlwood v. Best, 1 Bott,243. 
 PI. 234. But it is not usual to express 
 any time in the title of the rate, 
 
 (4) Tracey v. Talbot, z Salk. 531. 
 
 Of granting 
 warrant 
 pending on 
 appeal. 
 
 A 
 
 
 When war¬ 
 rant may be 
 granted. 
 
 Its sub¬ 
 stance. 
 
 X 
 
228 
 
 
 \ 
 
 Of the time 
 of sale. 
 
 ■L 
 
 i 
 
 Of laying and distraining 
 
 goods the levy is to be made, the rate upon which it is 
 grab ted, and the sum assessed and directed to be levied (i). 
 The sum will either be, ist, The whole assessment in the 
 rate: 2d, A part of it proportioned to the time of 
 occupying the premises, by 17 Geo. II. c. 38. s. 11.: 
 3d, Under 41 Geo. III. c. 28. s. 2. in case of notice of 
 appeal the amount of the last effective rate on the person 
 appealing, or upon the premises for which he is assessed: 
 Or, 4th,° The sums at which the several parties stand 
 assessed in the amended rate, if the appeal has been heard 
 and allowed before the warrant issues. 
 
 By 27 Geo. II. c. 20., in this and all other cases where 
 the justices have power to levy by distress, the warrant 
 must direct the goods and chattels so distrained to be 
 sold within a certain time limited therein, notJkss than 
 four, nor more than eight days; unless the sum for which 
 the distress is made, together with reasonable charges of 
 taking and keeping it, be sooner paid. 
 
 One for two 
 
 rates. 
 
 One warrant may be granted to compel payment of 
 two assessments under different poor s rates due to the 
 same parish by the same person; but it is moi e prudent 
 to make separate warrant, since, otherwise, if one of 
 the rates be illegal, the warrant which enforces payment 
 of the aggregate sum is bad. (2) 
 
 Of the levy; When the warrant is thus issued, it becomes the duty 
 * of those to whom it is directed, to levy under it, and they 
 are alone answerable for their conduct, if it is good in 
 its form, and properly granted. (3) 
 
 • ' (j) See the form, 4 Burn’s Just. (3) Hutchins v. Chambers, 1 Burr. 
 
 tit. Poor (Rate). 579 - Newton v. Young* i New 
 
 (2) Admitted in Milward v. Coffin, Rep. 187« 
 
 1 Black. Rep. 1330. Patched v. 
 
 Bancroft, 7 Term Rep. 367. 
 
 As 
 
for the Poor's Rate . 229 
 
 As to the place in which this levy is to be made, the 
 most obvious is the parish for which the assessment is 
 made. 
 
 But where the offender had no chattels within the 
 parish, a levy under the warrant in the adjoining parish 
 where he had goods and resided, was held well, without 
 the help of statute, both parishes being situated in the 
 same county, within the magistrates’ jurisdiction. (1) 
 
 But now, by 17 Geo. II. c. 38. s. 7. the goods of any 17Geo.it. 
 person assessed and refusing to pay, may be levied by 
 warrant of distress, not only in the place for which the 
 assessment is made, but in any other within the same 
 county or precinct. 
 
 If sufficient distress cannot be found in the said county in a dlffer- 
 or precinct, on oath made thereof before some justice of cnt C H lL - 
 any other county or precinct (which oath shall be certified 
 under the hand of such justice on the said warrant), such 
 goods may be levied in such other county or precinct by 
 virtue of such warrant or certificate. 
 
 Any person aggrieved by the distress may appeal to the Appeal, 
 next quarter sessions of the county or precinct lor which 
 the assessment is made, who are required finally to hear 
 and determine the same. 
 
 / - 
 
 % 
 
 And by 33 Geo. III. c. 55. s. 3., in all cases where any 33Gco.m, 
 penalty, forfeiture, fine, or other money, may by the > 
 warrant of any justice or justices of the peace be directed 
 to be levied by distress and sale of the goods and chattels 
 of any person or persons; if sufficient distress cannot be 
 found within the limits of the jurisdiction of the justice 
 
 (1) Hampton v. Lammas, Holt, C. J. Lord Rsym. 735. 
 
 0 
 
 9 3 granting 
 
 4 
 
I 
 
 230 Of levying and distraining 
 
 granting such warrant of distress; on oath thereof made 
 by one witness, before any justice of the peace of any 
 other count}^ riding, division, city, borough, town cor- 
 * porate, or place, (which oath shall be by him certified by 
 indorsement on such warrant,) such penalty, forfeiture, 
 fine, or other money, or so much thereof as may not 
 have been before levied or paid, shall and may, by virtue 
 of such warrant and indorsement, be raised and levied 
 
 m , 1 
 
 by the person or persons to whom such warrant of distress 
 shall have been originally directed, by distress and sale of 
 the goods and chattels of such person or persons, in such 
 other county, riding, division, city, borough, town cor¬ 
 porate, or place; and the money arising by such distress 
 and sale, shall be applied and disposed of for such pur¬ 
 poses, and in like manner, as if sufficient goods and 
 chattels of such person or persons had been found within 
 the jurisdiction of the magistrate originally granting such 
 warrant; and if no such distress can be found, such 
 offender or offenders shall and may be forthwith pro¬ 
 ceeded against according to law: provided always, that 
 no justice who shall endorse any certificate upon, or 
 authorise the execution of any such warrant of distress 
 which may not have been granted within his jurisdiction, 
 shall be answerable or accountable for any irregularity 
 which may have been committed or done, in or about 
 the obtaining or granting of such warrant of distress. 
 
 V Geo. 2. When the officer executes the warrant, he is required 
 by 27 Geo. II. c. 20. to shew it upon demand to the per¬ 
 son whose goods and chattels are distrained? and to suffer 
 a copy of it to be taken. (1) 
 
 4 j 
 
 In taking goods under a warrant of distress, the law 
 gives a power in some respects different from that which 
 
 (1) See Fletcher v. Wilkins, 6 East, 283. Post,vol. 2. 
 
 obtains 
 
 1 
 
 / 
 
for the Poor’s Rate. ^ 231 
 
 obtains in distresses made by landlords for recovery of 
 
 rent. 
 
 / 
 
 Under the statutes relating to levying a poor's rate, Goods <*x- 
 two sorts of things found on the premises of the person 
 distrained are protected from his statutory execution. 
 
 1st, Such as are not the actual property of the person 
 rated, and refusing to pay; the act of Eliz. expressly 
 requiring, that the sum due shall be levied by distress and 
 sale « of the offender’s goods.” But although a transfer 
 of property in them has been made to a creditor, yet if it 
 be done secretly, and the former owner continues in pos¬ 
 session, they are to be considered as the property of the 
 actual possessor, and are liable to execution as his. (1) 
 
 2d, Things affixed to the freehold, and which there¬ 
 fore do not come properly under the legal denomination 
 of “ goods,” as they are called by the act ol Eliz. or 
 
 44 goods and chattels,” as by the subsequent statutes. (2) 
 
 « 
 
 Things in actual custody and use c annot be seized as Goods P ar- 
 a distress for rent; sue ft as'an SeTn a man’s hand (3); 
 the horse on which he is riding (4); or the loom that he 
 is working at; since to permit them to be taken aw ay 
 from the possessor, must perpetually tend to a breach of 
 
 the peace. (5) 
 
 And although this point had only been determined with 
 respect to distresses for rent, and not for poor-rates; yet 
 the same tenderness for life, and respect to the intempei ate 
 
 (i) Edwards v. Harben, % Term (a) Gorton v. Falkner, 4 Term 
 Rep. 587. Barnford v. Baron, lb. n. Rep. 569. 
 and see the distinction taken in Kidd (3) tbid. 
 
 Rawlinson, a Bos. & Pull. 59. Bull. (4) Storey Robinson, 6 Term 
 
 N.P. *j 3 . Rep. 138. 
 
 (5) Ibid* 
 
 passions 
 
I 
 
 232 Of levying and distraining 
 
 passions of mankind, seem to require that the protection 
 should extend to them, in the latter case, when there is a 
 sufficiency of other goods on the premises to satisfy the 
 warrant. (1) 
 
 Things not The goods of the offender are in other respects less 
 pi.vikgoi. p r i v q e g e( j } than where the remedy is applied for the re¬ 
 covery of rents. For as things distrained may be sold, 
 the proceeding, though called a distress, resembles more 
 nearly an execution. Things therefore which are holden 
 privileged by common law, at least sub modo in the case of 
 rent (2); that is, which are exempt from being distrained 
 upon, while a sufficiency in value of other goods remains 
 on the premises, obtain no such privilege here. 
 
 Beasts cf Thus it has been held, that beasts of the plough may 
 pu ogn. k e f- a k en as distress for the poor’s rate, although there is 
 at the time more than a sufficiency of other goods upon 
 the premises to satisfy the demand (3). Hence it may be 
 safely relied upon as a general position, that all goods, 
 being the property ofLthe person rated, which can be 
 taken as a distress for rent, may be taken also in satis¬ 
 faction of the poor’s rate. 
 
 So money may be distrained (4), or the working 
 tools of a cooper lying in his shop for the purpose of 
 carrying on his trade (5}; nay, the very wearing apparel 
 
 Money, 
 teds, &c. 
 
 (1) There is a considerable dis¬ 
 tinction between the cases of distress 
 for rent, and for a rate. The latter is 
 in the nature of an execution by a 
 warrant granted by a public magistrate, 
 to which the party is bound to pay 
 obedience ; but a distress for rent is a 
 summary remedy permitted to the 
 landlord, who is interested in the ques¬ 
 tion. See Anon. 3 Salk. 156. Moyse 
 v. Cocksedge, Willes’ Rep. 636. 
 Hutchins v. Chambers, 1 Burr. 579. 
 
 (2) See Gorton v. Falicner,4 Term 
 Rep. 569. 
 
 (3) Hutchin <v. Chambers, i Bum. 
 579. also 3 Salk. 136. 
 
 (4) East India Company v. Skinner, 
 Ibid. 242. PI. 230. 
 
 (5) Edgecomb v. Sparks, 2 Show. 
 126. Simpson ■v.Martopp, Willes, 512. 
 3 Com. Dig. tit. Distress, cites Sand. 
 Obs. cn S. 22 Car. 2. ch. 1. p. 39. 
 Gorton v. Fulkner, 4 Term Rep. 369. 
 
 of 
 
233 
 
 for the Poor's Rate . 
 
 of his wife and children, if taken while not in actual 
 use; as, when those who w r ore them are in bed (i). But 
 . the officers can not justify breaking by violence into the 
 house, in order to seize the goods, (2) 
 
 The goods are to be publicly sold at the time directed “ e 
 in the warrant, unless the sum due, with reasonable 
 charges for taking and keeping the distress, is previously 
 
 paid. ' 
 
 When sold, the officer who makes the distress is em¬ 
 powered by 27 Geo. II. c. 20. to deduct the reasonable 
 charges of taking, keeping, and selling the distress out of 
 the money arising by the sale; and the overplus, after 
 fully satisfying and paying these charges, and the sum 
 directed to be levied, is to be returned on demand to the 
 owner of the goods and chattels distrained. (3) 
 
 If the officer does not take sufficient goods by his first wliere a 
 distress to satisfy the exigence of his warrant, he may second, 
 make a second under it for that purpose (4), although he 
 could have taken enough upon his first coming on the 
 premises (5)* This is beneficial to the peison distrained 
 upon, as it enables the officer to act with model ation 
 and tenderness, in not taking too much, which he must 
 otherwise do in order to secure himself, if he could not 
 come a second time to make good the deficiency (6). 
 
 On the other hand it seems advantageous to the person 
 levying, since although it has been determined, that a 
 general action of trespass cannot be maintained against 
 
 (x) Bisset <v. Caldwell, I Bott, 2.49* 
 n. a. 
 
 (a) Per Lord Ellenborough, C. L 
 Bell 1*. Oakley and others, Maidstone 
 summer assizes, 1813. 
 
 (3) Parish officers might have done 
 so previous to this act where they did 
 
 not appear oppressive or extravagant, for 
 
 the distress being in the nature of an 
 
 execution, the necessary expences os. 
 the levy are incidental thereto. Moyse 
 v. Cocksedge, Willes’ Rep. 636. 
 
 (4) Hutchin v. Chambers, I Burr. 
 
 579 * 
 
 (5) Ibid. 
 
 (6) Hutchin v. Chambers, 1 Burr. 
 579 - 
 
 him 
 
234 
 
 Of levying and distraining 
 
 Commit 
 party to 
 prison. 
 
 Of payment 
 where the 
 rates is af¬ 
 terwards 
 quashed. 
 
 41 G.III. 
 c. 23. 
 
 him for taking an excessive distress, where the goods 
 levied upon are of arbitrary and uncertain value; yet the 
 party injured might have a special action against him upon 
 the statute of Maribridge. (1) 
 
 If there should be no distress, the party may be com¬ 
 mitted by warrant of two justices to the common gaol, 
 there to remain without bail or mainprize, until he dis¬ 
 charges the sum at which he is assessed (2); and when it 
 is intended to proceed to this extremity, the sum¬ 
 mons to appear before the magistrates should be served 
 upon the defendant in person. But no parish ought to 
 take this course, unless by way of punishment, where the 
 defendant has fraudulently concealed or disposed of his 
 
 Formerly, if payment was enforced even from those 
 who did not appeal, and the rate was afterwards quashed; 
 the justices who granted the warrant of distress, and the 
 officers who acted under it, were liable to an action of 
 trespass, as having entered the premises of the person 
 distrained upon, and taken his goods without lawful 
 powers; and those who had voluntarily paid their pro¬ 
 portion, might in many cases harass the collector by an 
 action for money had and received under a void autho¬ 
 rity. 
 
 These mischiefs w r ere remedied by the act for the better 
 collection of the poor’s rates, 41 Geo. III. c. 23. It 
 provides, that when it is necessary for the relief of the 
 persons appealing, the sessions shall quash the rate; but 
 that all and every sum of money charged by such rate on 
 any person, may be levied by such means, and in such 
 manner, as if no appeal had been made against it; and 
 
 all sums charged therein, which any person charged 
 
 < \ 
 
 (1) Hutchin v. Chambers, 1 Burr. (2) Even for a penny. Moysev. 
 572. Cocksedge, supra. 233. (3). 
 
 therein 
 
for the Poor's Rate . . * 
 
 / * ■ 7 
 
 therein shall pay, or which shall be levied or recovered 
 from him, shall be taken as payment on account of the 
 
 next effective rate. 
 
 * • 
 
 It has been already seen, that the sum at which the Sea. 
 person rated and appealing, or any former occupier of 
 the premises, was rated in the last effective rat^e, may be 
 recovered by distress notwithstanding the appeal, but no 
 more. 
 
 • . i 
 
 Sect. 4. provides further, in consideration both of those Sect, 
 who are to enforce, and those who are to pay the rate, 
 thatwhere it is quashed on appeal, the sessions may order 
 any sum charged in and by such rate, or any part thereof, 
 not to be paid, and then no proceedings shall, after the 
 making such order, be commenced, and if previously 
 commenced, they fhall be no farther prosecuted to en¬ 
 force payment in any sum which shall be so ordered not 
 to be paid. 
 
 Provided also, that no justice, constable, peace-officer, 
 or other person, shall be deemed a trespasser, or liable to 
 any action, for any warrant, order, act, or thing, which 
 such justice, &c. shall have granted, made, executed, or 
 done, for the purpose of enforcing payment, before he 
 shall have had notice in miting of the order for non¬ 
 payment. 
 
Of the fet- 
 tlement of 
 vagrant 
 poor. 
 
 12 R. II. 
 C- 7 * 
 
 ii H. VII, 
 
 C. 2 . 
 
 ( 236 ) 
 
 J 
 
 CHAPTER XV. 
 
 Of ascertaining what Poor the Parish are bound t& 
 
 maintain . 
 
 Origin and History of the La’w of Settlements . 
 
 IT is difficult to trace with precision the law of paro- 
 
 chial settlements to its original foundation. 
 
 The poor, as regulated by act of parliament, were 
 originally distinguished into two classes: beggars able to 
 work, whom it punished with severity as criminals; and 
 beggars, who being unable to maintain themselves from 
 age or bodily infirmity, were compelled to seek their 
 support from the alms of charity. 
 
 The settlements provided for this latter class of un¬ 
 fortunate people, are easily followed through the statute- 
 book. The earliest act directs, that beggars impotent to 
 serve shall abide in the place where they be dwelling at 
 the time of the proclamation of the statute; and if the 
 cities or other towns will not, or may not suffice to main¬ 
 tain them, then they shall draw themselves to other towns 
 within the hundred, or to the towns where they were 
 born, within forty days after the proclamation made, and 
 there shall continually abide during their lives. (1) 
 
 X I 
 
 But as it frequently happened that the indigent had, 
 from accidental circumstances, least means of exciting 
 compassion in the place of their nativity, 11 Hen. VII. 
 
 ' i • 
 
 (1) 12 R. II. c. 7. 
 
 C. 2. 
 
237 
 
 History of the Law of Settlements. 
 
 • * « 
 
 c. 2. conceded to the unfortunate beggar a more ample 
 
 circuit for the exercise of his fortuitous means of sub¬ 
 sistence, by declaring that ail beggars shall go and abide 
 in that hundred where last he dwelled, or where he is 
 best known, or born. The restriction to the hundred 
 i6 where the person was best known,” was too. indiscri¬ 
 minate to determine any thing, and nearly amounted to 
 a general licence to beg throughout the kingdom. The 
 19 Hen. VII. c. 12. therefore, limited this vague de- 19 h. 7. 
 scription, by enacting that they shall go and abide in the c ' 12 ' 
 city, town, or hundred, where they were born, or else 
 to the place where they made last their abode for the 
 space of three years; and this continued to be the rule 
 of settlement in subsequent statutes passed against va¬ 
 grancy, in the reign of Henry VIII., his son Edward, 
 and daughters Mary and Elizabeth, (i) 
 
 The i4Eliz. c. 5. after enacting that the justices shall 74 Eliz, 
 appoint within their divisions neat and convenient abiding c< 5 ‘ 
 places to settle the aged and impotent poor, for their ha¬ 
 bitations and abidings; directs, that the mayor of Lon¬ 
 don, and the mayor, sheriffs, bailiffs, and other head 
 officers, of every other city, borough, or town corporate, 
 and the constables, or tithing men of the several hun¬ 
 dreds within all and every the said shires in England and 
 Wales, in all and every such abiding places within their 
 hundreds, limits, and precincts, as shall be appointed to 
 settle the poor people in, shall once a month make search 
 of all the aged, impotent, and lame persons within the 
 precincts of their jurisdiction; and all such as they shall 
 find not being born within that division, nor dwelling 
 within the same three year*, (except leprose and bedrid 
 people,) shalL cause to be conveyed on horseback, cart, 
 
 (1) 22 H. VIII. c. 12. 27 H. VIII. c. 5. 18 Eliz. c. 3. See all these 
 
 c. 25. I Ed. VI. c. 3. 3 & 4 Ed. VI. statutes collected in Dr. Burn’s History 
 c. 16. 5 & 6 Ed. VI. c. 2. 1 & 2 P. of the Poor Laws, chap. 4. p. 60, 
 
 &: M. c. 5, j Eliz^ c. 3. 14 Eliz. ed. 1764. 
 
 OI\ 
 
 \ 
 
238 
 
 History of the 
 
 Removals 
 undei va¬ 
 grant acts. 
 
 Distinction 
 between 
 rogues and * 
 vagrant beg¬ 
 gars. 
 
 ✓ 
 
 or otherwise, to the next constable, and so from constable 
 
 • * 
 
 to constable, till they be brought to the place where they 
 were born, or most conversant by the space of three years 
 next before, and there to be put in the abiding place, or 
 one of the abiding places appointed for the habitation of 
 the poor people of that country. 
 
 By the more early of the statutes, the poor were re¬ 
 quired to remove themselves to the places pointed out for 
 their settlement. This direction was subsequently en¬ 
 forced by the penalty of being punished as vagabonds, 
 when they neglected to obey. But the law of removals 
 directing them to be conveyed thither, as to their place 
 of settlement, in the manner already recited in 14 Eliz. 
 c. 5.* w T as originally established by 1 Edw. VI. chap. 3. 
 The 1 Jac. I. c. 7. made a further alteration, ordaining 
 that rogues, vagabonds, and sturdy beggars, should be 
 sent to the place of their dwelling, if they had any, and 
 if not, to the place where they last dwelt by the space of 
 a year, if that can be known, by their confession or 
 otherwise; and if that cannot be known, then to the 
 place of their birth. 
 
 These statutes draw in other respects a wide and proper 
 distinction between rogues and vagabonds, who have re¬ 
 course to begging in the love of idleness and vice; and 
 beggars who are compelled by decrepitude to glean the 
 necessaries of life from the pity of their fellow-creatures. 
 But they prescribe the same places, viz. cities, towns, or 
 hundreds, for the settlement of beggars of both descrip¬ 
 tions, and establish the same criterion ©f settlement for 
 both; namely, birth, and dwelling or inhabitancy for three 
 years, w ithout regard to the capacity or situation in which 
 they lived there; and placed them equally under the ju¬ 
 risdiction of the justices of the peace. 
 
 It 
 
Law of Settlements . 239 
 
 • * 
 
 It is evideht from reported cases, and the opinions of These st p 
 
 \ # tutes apply 
 
 learned judges, that their sole object was to suppress va- only to va¬ 
 grancy, and regulate the wandering poor who came un- £lants ' 
 der the description of beggars. 
 
 Thus Flemming Chief Justice, in a case between Weston 
 and Cowledge, 11 James I. declared, that C£ young chil- 
 44 dren whose parents are dead, are to be set at work, 
 
 44 relieved, or maintained, at the charge of the town 
 64 where they were dwelling at the time of the death of 
 44 their parents, and are not to be sent to their place of 
 64 birth, &c. For if the parents are not rogues, we 
 44 may not make the children rogues except they wander 
 44 abroad and beg (1).” So it is held in the resolution 
 ascribed to the judges in the time of Elizabeth: 44 That 
 44 no man is to be put out of the town where he dwelleth, 
 
 44 nor to be sent to his place of birth or last habitation, 
 
 44 but a vagrant rogue; nor to be found by the town, 
 
 44 except the party be impotent (2)*” And also, that 
 44 such persons as be of any parish , and have able bodies 
 44 to work, if they refuse to work at such wages as are 
 44 taxed or commonly given in those parts, are to be sent 
 44 to the house of correction, and not to their place of 
 44 birth or last dwelling , by the space of a year.” (3) 
 
 Dalton, when speaking of persons who having had 
 houses, but whose leases are expired, and of servants 
 whose times of service were ended, observes, 44 that such 
 44 persons must not be sent out of the town where they 
 44 so last dwelled or served: neither are they to be sent 
 44 ' from thence to their place of birth or last habitation, 
 
 44 but are to be settled there to work, being able of body; 
 
 (1) Dalt. Just. tit. Poor. chap. 73. (3) 10 Resolution of judges, temp, 
 
 p. 227. edition 1727. Eliz. Lamb. Eirenarch. p. 209. Be- 
 
 (2) Resol. 9. Lamb. Eirenarch. tween the vills of Suckley and Whit- 
 book 2. chap. 7. p. 209. ed. 1630. born, 14 C. 1 .1638, 2 Bulst. 357. 
 
 Dalt. Just. Id, 227. 
 
 « 
 
 or 
 
24 ° 
 
 Of the set¬ 
 tled poor. 
 
 History of the 
 
 i . 
 
 « 
 
 1:5 or being impotent, are to be there relieved: and yet 
 « if such persons shall wander abroad begging out of 
 44 that parish, then they may be sent as vagabonds from 
 44 the place where they shall be taken wandering or beg- 
 44 ging, to their places of birth,” &c. (i) So it was laid 
 down by Sir Francis Harvey, that 44 justices of peace, 
 44 especially out of their session, were not to meddle 
 44 with the removal or settling of any poor, but only of 
 44 rogues.” (2) , 
 
 And where a person could not be removed as a wan¬ 
 derer, it is said to have been the common law as far back 
 as from the time of the Mirror, that the parish was to 
 maintain him when actually chargeable. (3) 
 
 Parliament seems to have interfered no further respec¬ 
 ting the Settled Poor , than to provide a fund for their relief. 
 As they neither defined nor enumerated the circumstances, 
 which should constitute a settlement, and draw a distinction 
 between the refident inhabitant, and the wanderer or va¬ 
 grant, it becomes difficult to trace the period at which 
 
 (x) Balt. Just. Ibid. 228. Parish 
 of Hardingftam v. Parish of Brisley, 
 Mich. 16/39. Styles, 168, 2 Bott, 306. 
 PI- 345 • 
 
 (2) Summer assizes at Cambridge, 
 1629. Eod. Bait. 228. Lord Hard- 
 wicke, however, seems to intimate a 
 contrary opinion, where he observes, 
 “ And though the' notion of settle¬ 
 ments of poor persons had not ob¬ 
 tained at the time when the act ©f 
 5 Eliz. c. 4. was made, as it has done 
 since, yet it was a mistake of one of 
 the counsel to say, that the 33 Eliz. 
 was the first act relating to the settle¬ 
 ment of poor persons; for 27 H. VIII. 
 c. 25. which is printed in Rastalle’s 
 edition of statutes at large, establishes 
 a settlement for such as have been 
 l6 
 
 born or dwelt three years in any pa¬ 
 rish : there was a subsequent statute 
 1 Ed. VI. c. 3. But, indeed, the 
 present notions of settlements have 
 taken their rise from 13 & 14 C. II. 
 c. 12. St. Nicholas v. St. Peter’s, 
 Burr. 5. c. 91., 2 Const. 370. PI. 401* 
 See also the opinion of. Gould, J. 
 Steel v. Houghton et Ux. 1 H. 
 Black. 56. 
 
 (3) Per Foster, J. Rex v. Aythrop 
 Rooding, Burr. S. C. 412. 2 Bott, 
 
 474. PI. 493. By Gould, J. Steel v. 
 Houghton et Ux. 1 H. Black. 57. 
 But the opinion of Lord Mansfield 
 and Dennison in the first case, and also 
 that of Lord Loughborough in the 
 last, seem contrary. 
 
 those 
 
 * 
 
* 4 * 
 
 \ •« \ 1 
 
 Law of Settlements. 
 
 those criteria which are now held to ascertain it were first 
 established. 
 
 % 
 
 By an old law, 44 a stranger, or he who eometh guest-* 
 s£ wise to.an house, and there licth the third night, is 
 “ called an Hogenhyne or Agenhine ; and after the third 
 45 night, he is accounted one of his family in whose 
 44 house he so lieth (i).” And Minshieu, verb. Hogenhyne 
 8 c uncouth , saith, that uncouth signifies incognitas, and is 
 used, in ancient Saxon laws, for him who eometh to an 
 inn guestwise, and lieth there two nights at the most; 
 and that by the laws of Bdward, and of the Conqueror, 
 hospes trium ncctium , if lie did any harm, his host was 
 answerable for him as for one of his own family; and 
 that if he tarried any longer, then lie ivas called Hogenhyne 
 or Agenhine , that is, familiaris. So that it seemeth in 
 those' times, that to lodge in a place for three or four dav$ 
 together, was counted a settling. (2) 
 
 But this law appears to have been made not for the 
 purpose of ascertaining the poor man’s settlement, but as 
 a wise measure of police and general security. (3) 
 
 1 
 
 The first regular definition of lawful settling, other 
 tlian what is declared by statute for vagrants and beggars, 
 is in the resolutions of the judges of assize in 1633, which 
 state, that 44 the law unsettleth none who are lawfully 
 44 settled, nor permits it to be done by a practice or 
 
 v 
 
 (i) Per Fortescue, J. Rex v. Sr. 
 Peter’s in Oxford, Fol. 193, 2 Bott, 
 275. PI. 317. Opinion of Lee, C. J. 
 Rex v. Sowton, Burr. S. c. 128, and of 
 Gould, J. Steel <v . Houghton et Ux. 
 
 1 FI. Black. 55. 
 
 (3) 1 Black. Com. 114. 
 
 com* 
 
 (i) Terms de la Ley, voc. Hogen- 
 hitie. Secundum antiquana consuetu- 
 dinem did poterit de familia alicujus 
 qui hespitium fuerit cum alio per tres 
 noctes; qui primS nocte dici poterit 
 Uncouth ; fecunda, Gust; tertia nocte 
 Hogenhine. Bract, de Leg. fol. 124. b. 
 But in Bar. observ. on the statutes, it 
 is said to be the Saxon appellation for 
 a villain, p. 234. 
 
 • VOL# J. 
 
History qf the 
 
 « compulsion; and every one who is settled as a native, 
 
 « householder, sojourner, an apprentice, or servant for 
 “ a month at the least, without a just complaint made to 
 a remove him or her, shall be held to be settled. (i) . 
 
 • ' A ifjt 
 
 It seems further, that it must be an inhabiting with the 
 purpose of making the place an home. For it is laid 
 down in the same resolution, that “ a nurse child, or 
 « scholar at the grammar school, or at the university, or 
 «< persons sent to the common gaol, hospital, or house 
 « of correction (being impotent), are not to be esteemed 
 « as persons to be settled there, more than travellers m 
 « their inns; but their settling is where their parents arc 
 « settled ; and children born in common gaols and houses 
 « of correction, their parents being prisoners, are to be 
 44 maintained at the charge of the county.” (2) 
 
 So in a question of settlement submitted to Sir Wil¬ 
 liam Jones and Sir James Whitlock, judges of assize in 
 r629, prior to the date of these resolutions, it appeared 
 that a woman having young children, and travelling from 
 A. to E. died in B. an intermediate parish, leaving her 
 children there: the judges were of opinion, that the chil¬ 
 dren were settled in the place of their birth, and not 
 where the mother died in transitu . (3) 
 
 (l) See C. J. Holt’s opinion, Weston 
 Rivers v. St. Peter’s Marlborough, 
 a Salk. 49a. 26 Resol. of Judges of 
 
 assize 1633* Dalt. 2 - 3 * Dalton re¬ 
 cites it thus, p. 189. “ Every one 
 
 « who is settled as a native, an house- 
 «-holder, sojourner, an apprentice, or 
 « a servant retained for one month, 
 &c. This seems to confine the month s 
 residence to the case of a servant, an 
 explication ef which the original reso¬ 
 lution seems capable, see post. 249 ' 
 et seq. 
 
 V 
 
 (2) 32 Rescl. eod. Dak. 337 - p er 
 Cur. Taking a boarder to school will 
 not make him an inhabitant, for he 
 has his maintenance elsewhere; the 
 same of a nurse child; one put to 
 board is no sojourner within the act; 
 sojourning is the act of a free mind, 
 but putting to board, perhaps, is not. 
 Rislip Hendon and Harrow, Fort, 
 
 3 £I * 
 
 (3) 2 Bulst. 351. 
 
 A persoi^. 
 
Law of Settlements* 
 
 A person who became a settled inhabitant by any of 
 these means, could not be removed unless by his own 
 act, and if he afterwards became impotent and poor* he 
 tvas entitled to relief from the parish funds. 
 
 The district from whence the fund for maintaining the 
 poor was raised, almost of necessity determined the limits 
 within which those for whose use it was levied, and by 
 whose officers it was administered, should be accounted 
 settled. The fund for the poor’s relief was ordained to 
 be collected by parishes and placed under parochial admi¬ 
 nistration and superintendance, by 27 Hen. VIII. c. 25 ; 
 but the 14 Eliz. c. 5. seems to be the first statute in 
 which the term, settling poor people is made use of. The 
 poor’s rate, however, was directed to be raised by pa¬ 
 rishes, and placed under the control of parochial officers 
 in the time of Queen Elizabeth, from whence it may be 
 safely concluded that the origin of parish settlements is to 
 be referred, either to her reign or to that of her father(1). 
 It is observable, indeed, that the legal decisions and opi¬ 
 nions already cited, although of a later date, use the 
 word 66 towns,” in reference to settlements; but it is 
 plain that it is considered as a denomination synonymous 
 with “parishes” 
 
 Although a person thus settled became part of the local 
 poor, and entitled to relief; yet if he departed volunta- 
 rily, and turned vagrant, he was liable to be removed 
 under the statute to the place of his birth, or last dwelling 
 
 (1) The 22 Hen. VIII. c. 12. im- should be ordered on their coming to 
 powered justices to grant licences to the hundred, and how the hundred 
 bee in a hundred, city,borough, parish, should be charged for their relief. It 
 liberty, or franchise, within the limits imposed the duty of maintaining the 
 of their division, and directed that if wandering poor upon cities, shires, 
 they begged any where else, they towns, hundreds, hamlets and parishes; 
 should he sworn to return to the place but it imposed the penalty for neglect- 
 where they be authorized to beg. ing to do so, viz. 20s. a month, upoij 
 The 27 Hen. VIII. c. 25. cited above parishes only, 
 was passed to provide how the poor 
 
 r 2 for 
 
 243 
 
 Relief of 
 
 persons 
 
 settled. 
 
 Settlement 
 by parishes. 
 
 1 
 
244 
 
 History of the 
 
 for three years (i). So that the obligation to rolic\ c might 
 cease with the continuance to dwell in the parish, bor 
 the person removing might have resided moie than a 
 month, and less than three years; and could not, it he 
 became a vagrant, be removed thither again. 
 
 But a class of cases occurred, which were neither pro¬ 
 vided for by the statutes against vagrancy, nor by the 
 law of settlement as it is here explained. 
 
 Relief of Persons, not in the state of wandering poor, might 
 moving, vp ho l )e compelled, from the urgence ol accidental necessity, 
 were not in to as p- r elief in places where they were not settled. Such 
 vagrancy. as children within the age of nurture, left by the death 
 or desertion ol the lather or mother in a parish where 
 they were not born, nor their parents settled; persons 
 taken suddenly ill, when travelling from one place to 
 another in pursuit of their lawful avocations; or who, 
 after removing for the purpose of gaining an honest live¬ 
 lihood in another parish, became actually chargeable, be¬ 
 fore their settlement was complete. 
 
 Hence a question arose between parishes, upon whom 
 the maintenance ol poor persons thus circumstanced 
 should fall; whether they w ere to be removed to the place 
 of settlement appointed for vagrants; or to that of their 
 Last settlement as inhabitants: or whether they w r ere to 
 be maintained as casual pool*, in the parish to which they 
 had thus become suddenly a burthen. 
 
 First deter- The first general resolution upon the subject seems to 
 tnination. j iave been ma d e by Sir William Jones and Sir James 
 Whitlock, in the case already cited from BuTstrode (2): 
 Birth or last « that the place of their birth, or the place of their last 
 
 habitation. r 
 
 ( 1) Suckley and Whithorn, 2 Bulst. 
 
 357 - 
 
 (a) a BuUt. jjt. Seeante, 343.; 
 
 and a Bulst. 350. Margaret Brown’* 
 case, 37 Car. 1. 1631, 
 
 “ habitation,. 
 
* 
 
 Law. of Settlements, . 24 
 
 habitation, if the same may be known, are in judgment 
 of law said to be the places of settling; so that if one 
 be boi n in such a place and parish, and afterwards is « 
 an inhabitant in service in another place and parish, 
 and after this he becomes to be a wanderer, he is here 
 “ by the law to be sent to the last place of his settling, 
 
 “ to be there kept and provided for.” 
 
 This resolution refers to the case of wandering poor, 
 and speaks of a settlement by residence to which the rc- 
 liioval should be made; but it does not specify whether it 
 could be gained by residence for a shorter period that is 
 prescribed by the statutes against vagrancy. 
 
 But they also resolved, 44 that an infant under the age 
 44 of seven years shall not be said to be a wandererand 
 they sent the children, being infants, whose mother had 
 died in transitu , from the parish where they were found 
 at their mother 5 s death, to the several parishes of their 
 births, 44 as poor to be by them provided for, but not as 
 44 wanderers, rogues, or vagabonds. 5 * 
 
 This pointappears to have been more expressly decided Settlement 
 a few years afterwards in the court of king 5 s bench. An by service ' 
 inhabitant in the parish of B. hired a maid-servant by 
 covenant; she fell sick some time afterwards, and her 
 master turned her out without giving her any thing; and 
 the maid for necessity, in travelling from B. towards H. 
 where she was born, was forced to beg for relief; where¬ 
 upon she was sent as a vagrant to H.; the vill of H. sent 
 her back to B. whereupon B. procured an order of ses¬ 
 sions to settle her at H. where she was born. 
 
 * I.. * ^ 1 
 
 The question was, whether this was a good order or 
 not, for settling her at H. according to the statute; or 
 whether she ought to be settled at B. where she was enter¬ 
 tained as a covenant servant, and turned out of service, 
 agd forced to beg by that means? And Rolle Chief Justice 
 
 R 3 said a 
 
 
History of the 
 
 said, that there seems to be a fraudulency in the master 
 to make his servant a vagrant, that so he may be rid of 
 her: but if one beg meat and drink tor necessity in pass¬ 
 ing between one town and another, this is not begging to 
 make one a beggar within the statute: and therefore the 
 court ordered that the party should be settled at B. where 
 she was entertained ■ for a covenant servant, and not at 
 tL where she was born. (i) 
 
 So also in a case not long subsequent to 13 & 14 Car. 
 respecting an application for the relief of a poor child, it 
 was resolved by Pemberton C. J., Dolben, and other jus¬ 
 tices, 34 Car. II. fiC That no notice can be here taken 
 « respecting the birth of the children, but of their last 
 « settlement, by 43 Eliz. c. 2. because they are only poor 
 <« children and not vagabonds; but they which are rogues 
 “ or vagabonds within 39 Eliz. c. 4. shall be provided for 
 ci by the place where they were born.” (2) 
 
 These cases go some way to shew, that prior to 13 & 
 14 Car. II. the obligation to relieve impotent and settled 
 poor, continued not only while they remained in the 
 parish, but after leaving it, until they became vagrants, 
 ipr had acquired other settlements. (3) 
 
 But it is difficult to point out the origin of the power 
 of removal in such cases, as it seems to have been exer¬ 
 cised by justices of peace prior to 13 & 14 Car. II. which 
 gives it expressly. That of removing vagrants and com¬ 
 mon beggars was created by statute. Ever since 14 Eliz, 
 c. 5. persons of this description were transferred to their 
 parish under pass warrants, which consigned them fiom 
 constable to constable, in the same manner as vagrants are 
 passed at this day. Magistrates would have to determine 
 
 (1) Paroch. de Hardingham v. (a) Sir T. Raym. 477- 
 
 Paroch. de Brisley, Mich. 1649. Sty. (3) Suckley Whithorn, 2 Bulst. 
 
 e68 . 357. & ante, 244* 
 
 11 
 
 Power to 
 
 remove 
 
 whence. 
 
 S 
 
Law of Settlements. 
 
 in ail cases when they were called upon to grant relief, 
 whether it was asked by a person who was necessitous 
 from casualty, or by a beggar and vagrant. But whether 
 the practice arose from a liberal interpretation of these 
 statutes; or crept into use from justices not having origi- 
 naily attended to the distinction pointed out by the act. 
 but regarding every person asking parish relief as a com¬ 
 mon beggar; or whether it originated with the magistrates 
 in sessions by reason of their appellate jurisdiction over 
 the palish rate and overseers accounts; or in what other 
 mode it commenced, or to what extent it was exercised, 
 is no where expressly laid down. 
 
 But it is to be observed, that it has been held not to 
 extend to extraparochial places. (i) 
 
 A poor man might be fairly supposed to retain his situa¬ 
 tion of a settled inhabitant in a particular place, although 
 quitting it for a season, until he parted with the character, 
 either by settling somewhere else, or by indicating a re¬ 
 solution to abandon all permanent residence when he turned 
 vagrant. As soon as it became a question, whether one 
 thus circumstanced should be maintained by the parish in 
 which he was so settled, or by one to which he became 
 chargeable by an accidental calamity, it must have ap¬ 
 peared more conformable to the statutes regulating the 
 wandering poor, and to natural justice, that the former 
 should be held liable; and it was not unreasonable to con¬ 
 clude, that a power to remove to the place which lay 
 under this obligatory duty to maintain him, was impliedly 
 given by the creation of the duty itself 
 
 (i) Post. vol. ii. chap. 29. sect. 2 . In known, and the poor are entitled to 
 Scotland also where the poor laws cor- receive relief from their place of settle- 
 respond in a great degree to what ours ment, though living in another parish, 
 were prior to 43 F.liz. c. 2. the law of as is the case of children within the age 
 removals, as piactised with us, is un- of nurture in this part of the kingdom. 
 
 r 4 This 
 
/ 
 
 
 s 
 
 History of the 
 
 This seems to have been the opinion of Lord Half 
 who in laying down that there is no power of removing 
 to or from an extraparocliial place, observes that, per- 
 “ sons in extraparocliial places must subsist on private 
 “ charity, as all persons did at common law before 43 Eliz. 
 44 which enacts that evervparish shall keep their own poor, 
 44 in consequence of which the jurisdiction of removals was 
 “first set up before the statute of 14 Car. II. c. 12. for un- 
 44 less the poor were removed to their own parishes, every 
 44 parish could not maintain their own poor.” (1) 
 
 ‘ Also in another case it is observed by the same great 
 judge: 44 Before 13 Car. II. two justices removed by 
 consequence of law upon 43 Eliz., because that statute 
 makes a provision that every parish shall maintain its owm 
 poor; therefore the justices considered who were properly 
 the poor of the parish, and they were held to be such as 
 were there settled a convenient time, which was thought 
 a month, so that a month’s abode made an inhabitant.” 
 Still there remained several doubts which occasioned 
 13 & 14 Car. II. c, 12.” (2) 
 
 Some points respecting parish settlements which were 
 not touched by 13 & 14 Car. II. seem to rest even now 
 upon the law as it stood before that statute passed. Such 
 are the settlement of natural children born in gaol, or in 
 hospitals, or pending an order of removal (3); that of 
 servants residing, during sickness, in a different parish 
 from their masters (4). Indeed every settlement gained 
 in right of marriage or parentage, and also removals by 
 reason thereof, and possibly settlements on tenements of 
 1 ol. a year, or by estate, depend equally upon the antece¬ 
 dent law, as not being within the letter of the statute. 
 
 (1) Dean v. Linton, a Salk. 487. 
 See also z P.ulst. 357. 
 
 (a) Weston Rivers v. St. Peter’s 
 Marlborough, z Salk. 492. It is ob¬ 
 served by Rider, C. J. that the 13 H 
 J4C^r. II. c, ia. first created the right 
 
 of settlements in parishes. Rex v. 
 St.Botolph,Bishopsgate,Burr.S.C 367* 
 z Bott, 84. PI. 123. 
 
 (3) Post, chap, xix. 
 
 (4) Post. chap. xx. 
 
 * 
 
 But 
 
Lctx of Settlements . 
 
 But the doubt, if it did exist, is removed in other cases, 
 by the 13 & 14 Car, II. c. 12. which recites in the pre¬ 
 amble the grounds upon which it passed. 44 Whereas, 
 44 by reason of some defects in the law,- poor people are 
 “ not restrained from going from one parish to another, 
 44 and therefore do endeavour to settle themselves in those 
 44 parishes where there is the best stock, the largest com- 
 44 mons or wastes to build cottages, and the most woods 
 “ for them to burn and destroy; and when they have 
 44 consumed it, then to another parish, and at last become 
 44 rogues and vagabonds, to the great discouragement of 
 44 parishes to provide flocks when it is liable to be de- 
 44 voured by strangers: be it therefore enacted, by the 
 44 authority aforesaid, that it shall and may be lawful, 
 44 upon complaint made by the churchwardens, or over- 
 44 seers of the poor of any parish, to any justice of the 
 44 peace, within forty days after any such person or per- 
 44 sons coming to settle as aforesaid, in any tenement under 
 44 the yearly value of ten pounds, for any two justices of 
 44 the peace, whereof one to be of the quorum of the 
 44 division, where any person or persons that are likely to 
 44 be chargeable to the parish shall come to inhabit, by 
 44 their warrant to remove and convey such person or 
 44 persons to such parish where he or they were last legally 
 44 settled, either as a native, householder, sojourner, ap- 
 44 prentice, or servant, for the space of forty days at the 
 44 least, unless he or they give sufficient security for the 
 44 discharge of the said parish, to be allowed of by the 
 < 4 said justice's.” 
 
 This statute adopts the very words used in the 2 (5th re¬ 
 solution of the judges of assize in 1633, as to the modes 
 of gaining a settlement, but alters the time of residence 
 by'which it may be acquired from 44 a month at the least,’’ 
 to 44 forty days at the least.” It places vagrant beggars on 
 the same footing with other impotent poor, in respect to 
 the methods ol acquiring a settlement,* and puts it beyond 
 
 doubt. 
 
 MV 
 
 *3&X4C\ir. 
 c. i a. 
 
 Construc¬ 
 tion of the 
 act. 
 
2$Q 
 
 History of the 
 
 doubt, that the settlement gained is to continue until a 
 new one is acquired. It gives power to justices of peace 
 in all cases of removal and settlement, and prevents a set¬ 
 tlement being acquired by the mere a6t of residence 
 for a month, without being chargeable, as might have 
 been done previously; for it enables two magistrates to 
 remove not only those who become chargeable before 
 they have resided for the space of forty days, but such 
 as they shall in their discretion deem likely to become 
 so, unless they give security for the discharge of the 
 parish. 
 
 Prior to this statute, no one could be removed unless 
 they were in a state of vagrancy, or had become actually 
 chargeable to some other place than that of their settle¬ 
 ment. But this a6t regards all persons of an inferior 
 condition who change their habitation as vagrants and va¬ 
 gabonds, unless they come to reside upon a tenement of 
 i ol. a year value. Lastly, it gives a right of appealing 
 to the next quarter sessions, to those who are aggrieved by 
 the order. . 
 
 The following weighty reasons are assigned by Dalton 
 against the policy of this act: 44 it is well worthy the 
 44 consideration of wise law makers to consider whether, 
 64 notwithstanding the specious allegations in the said act’s 
 44 preamble, it may not be prejudicial to the common* 
 44 wealth. For that, i. By the words likely to he chargeable, 
 44 too great a scope is given to any person, although never 
 44 so just and prudent, to inspect, and to determine ano- 
 44 ther man’s livelihood and condition. 2. A man with- 
 
 t. • * •• • 
 
 44 out his offence is barred of his natural liberty, and 
 44 upon a possibility remote enough, may be made a beggar 
 44 and a prisoner, at the same time deprived of the com- 
 44 pany of friends and relations, choice of air, and place 
 44 of trade. 3. It tends to the discouragement of in- 
 44 genuity and industry; for why should any one learn 
 
 44 or 
 
I 
 
 Ixvw of Settlements . % C t 
 
 / 
 
 <£ or endeavour to be excellent in any handicraft, which 
 Ci he is likely to make small use, and smaller benefit of. 
 
 “ 4. Places and persons are deprived of the labour and 
 “ industry of others. 5. It tends to depopulation, which 
 “ is the greatest inconvenience an island can un- 
 ** dergo.” (1) 
 
 (1) EodDalt. 231. But see these tory of settlements, which has induced 
 inconveniences remedied to a certain me to enter more fully into the subject 
 extent, 35 Geo. III. c. ior. post. 253. than I should otherwise have done; 
 
 Dr. Burn, both in his history of the besides which, it may not prove un¬ 
 poor Laws, chap. 4. and 5., and in the satisfactory to ascertain those founda- 
 sntroduction to his title “ Settlement,” tions upon which, much of the law of 
 3 Burn’s Justice, has in myapprehen- settlements rests at present. 
 
 4&GB, misconceived the origin and his- 
 
 a 
 
 
 ' 
 
 ✓ 
 
 \ 
 
/ 
 
 Settlements 
 by 13 ft 14 
 Car. II. 
 c. 10. 
 
 Notice by 
 2 Jac. II. 
 c. 17. 
 
 By 3 W. III. 
 
 c. II. 
 
 - ( * 5 * ) 
 
 * 
 
 CHAPTER XVI. 
 
 Of the several Kinds of Settlements , and General Rules 
 
 ■ which govern them . 
 
 ^ PLACE of settlement may be defined a district 
 maintaining its poor, to which persons become re¬ 
 moveable for the purpose of obtaining the relief given by 
 43 Eliz. c. 2. 
 
 The several methods of acquiring settlements in such a 
 district, as enumerated by 13 & 14 Car. II. c. 12. are 
 residence as a native, householder, sojourner, apprentice, 
 or servant for the space of forty days.. So that a person 
 who remained in any parish unremoved for that time, 
 gained a settlement in whatsoever capacity he resided: for 
 the justices were not only without power to remove, ex¬ 
 cept within the first forty days, but the act expressly ac¬ 
 knowledges a residence for that period, even as a so¬ 
 journer, to constitute a legal settlement. From the short 
 space of time given for removal, and the small notoriety 
 with which residence might be attended, the burthen of 
 large families was frequently thrown upon parishes, with¬ 
 out possibility of redress or power of prevention. To 
 remedy this inconvenience it was enacted by 1 Jac. II. 
 c. 17. that the forty days residence should be reckoned, 
 not from the time of a person’s first coming to inhabit, 
 but from that of his giving notice in writing to some 
 one of the parish officers of his place of abode, and the 
 number of his family. 
 
 ' / , i 
 
 1 
 
 The collusion or inattention of parish officers render¬ 
 ing this provision also inadequate to the supposed mis¬ 
 chief, it was further provided by 3 W. III. c. 11. that the 
 forty days should be reckoned from the publication of 
 such notice in the parish church, by which means every 
 
 inhabitant 
 
 \ 
 
253 
 
 * Of the several Kinds of Settlements , <§ c. 
 
 inhabitant must or ought to receive information of 
 the fact* 
 
 If no exception had been made to this general provi- Settlements 
 sion, all persons to whcfeu a residence for forty days was residence, 
 necessary in order to obtain a settlement under 13 & 14 
 Car. II. must have complied with the formality of notice 
 and publication. But the legislature saw that this provi¬ 
 sion might affect particular classes, who not coming into 
 the parish clandestinely, were not within the mischief 
 against which it was meant to guard, and with respect to 
 whom the provision would be nugatory, as there was no 
 power to remove them after notice given. For these 
 reasons, the following classes of inhabitants were alto¬ 
 gether exempted from the necessity of publishing notices : 
 t. Unmarried persons not having a child, who shall be 
 hired for a year. 2. Apprentices bound by indenture. 
 
 3. Persons paying their share towards the public taxes or 
 levies of the town or parish. 4. Persons on their own 
 account executing any public and annual office or charge 
 in the said town or parish during one whole year. 
 
 The 35 Geo. III. c. 101. rendered persons irremove- 35 Geo. III. 
 able until they become actually chargeable to the place 
 they inhabit; and of necessity abolished, by express pro¬ 
 vision, the mode of acquiring a settlement by notice and 
 residence. Otherwise a person of sufficiency to maintain 
 himself and family for the space prescribed by the sta¬ 
 tute, might have rendered the notice an unavailing for^ 
 mality, and the party giving it must have gained a set¬ 
 tlement in defiance of the wishes and vigilance of the 
 parish. 
 
 * * 4k' ' « "* " '» * • •» 
 
 But all persons exempted by 3 W. III. c. 11. from the Settlements 
 necessity of giving notice, continue to gain a settlement taxwabo. 
 by residence for forty days in any of the capacities which 
 
 are 
 
254 
 
 1 
 
 Other set¬ 
 tlements. 
 
 i 
 
 40 days, 
 residence. 
 
 Of the several Kinds of Settlements, 
 
 are there enumerated, except being rated to and paying 
 public taxes in respect of a tenement which is not of the 
 yearly value of iol. that being likewise abolished by 33 
 Geo. III. c. 101. 
 
 r> 
 
 The scope of 13 & 14 Car. II. was to suppress va¬ 
 grancy in the lower ranks of society, and there were other 
 methods of becoming a settled inhabitant in use before 
 the statute passed, which that act left to the operation of 
 the antecedent laws. 
 
 1. Persons who come to reside on a tenement of the 
 yearly value of ten pounds, are expressly exempt from 
 removal by the act itself. 2. Persons who come to reside 
 upon their own estate have been held so, as not being 
 within the mischief it was designed to remedy (1). For 
 they do not intrude into the parish as strollers and vaga¬ 
 bonds, nor come with the bad intentions mentioned in 
 the preamble (2). By the common law, no man can be 
 removed from his own (3); and the right is under Magna 
 Charta, that none shall be disseised of his freehold. (4) 
 
 But it was necessary by the old law, that the person 
 who migrated from one parish to another should be a set¬ 
 tled inhabitant to be entitled to relief; and it has been 
 shewn -that he must reside there for a limited period in 
 order to become so. In 1633, a month’s residence seems 
 to have been sufficient (5); this might have increased 
 into one for the space of forty days, previous to 13 & 14 
 Car. II. It does not appear whether such was the case, 
 or whether the enactment of that statute was considered as 
 
 (1) Harrow v. Edgeware, 2 Bott, 
 465. PI. 485: and the several cases 
 cited under title, Settlement by Estate, 
 post. chap. xxiv. 
 
 (2) Per Yates and Wilmot, J. Rex 
 v. Uttoxeter,Burr. S. C.538. » Bott, 
 
 ' 479* PI* 497* 
 
 (3) Per. Wilmot, J. Ib. 
 
 (4) Per Foster, J. Rex v. Aythorp 
 Rooding, Burr. S. C. 412. % Bott, 
 474. PI. 412. 
 
 (5) Resol. of Judges of Assize 
 1633, ante, p. 241. 
 
 \ 
 
 affording 
 
end General Rules which govern them. 255 
 
 affording an inference, that the legislature intended to 
 make a residence for that time necessary, wherever it is 
 at all required; but a residence for forty days, is now held 
 to be necessary in these as well as in cases of settlement 
 more strictly within the letter of the act. 
 
 Besides these methods of acquiring settlements, in 
 which residence is necessary, there are some in which it 
 
 is not. \ 
 
 . ; ' . . -•» ;• •• ' 
 
 The place where the individual is bom is as it were Settlements 
 ^jointed out by nature, and acknowledged by every sta- denc^is un- 
 tute which regulates the subject, as one in which he is ne ^ e ssaiy: 
 accounted settled by the mere circumstance of birth. (1) 
 
 1 
 
 If the settlement of the husband and w ife were distinct, s. Marriage, 
 it would defeat the object and law of their union; her 
 civil existence is merged in his; she becomes by marriage 
 an inseparable part of his family, and cannot be removed 
 from him, against his consent, but must be settled where 
 he is. 
 
 The law, with the same observance of the social prin- 3- Parent- 
 ciple, casts the first duty of watching over the child’s a * e ‘ 
 education and providing for its support upon the pa¬ 
 rents. Children, during pupilage, form natural parts 
 of that family of which the father, and upon his decease 
 the mother, are the head; to disjoin those whom nature 
 and policy had thus united, would be equally inconve- 
 
 (1) The words of the 26 Resol. of settlement: but they have been c®n- 
 Juc'ges 1633,and of 13 & M Car. II. sidered as applying not to the original 
 seem at first view to imply that there birth settlement, but to cases where, 
 should be a residence ; according to the after that settlement is destroyed by 
 resolution,for a month; and the statute the acquisition of one in some other 
 for 40 days, in the parish where the in- parish, the party returns to his native 
 dividual is born^ in otderto confer a parish, and resides there forty days. 
 
 nient 
 
2 j6 
 
 i. Deriva¬ 
 tive Settle¬ 
 ments. 
 
 Of the several Kinds of Settlem ents, 
 
 nient arid cruel; and the law preserves the oeconomy of 
 private families, in holding that the parents settlement, is 
 communicatad to their legitimate offspring, until they arc 
 emancipated.. (i) 
 
 * A , * » '* 'IP* 1 
 
 i. These several enumerated methods of acquiring 
 settlements, may be divided into two general classes; 
 i. Such as are communicated without a residence of 
 forty days; which maybe called derivative, or natural 
 settlements'(2); and are, 1. marriage; 2. parentage; 
 3. birth. 
 
 Acquired 2. Where a residence of forty days is necessary, which 
 .1 mcnts * may be called acquired settlements: and are gained, i. By 
 inhabitancy as an hired servant; 2. as an apprentice; , 
 3. serving an office; 4. where a person has a tenement 
 of ten pounds a year value; 5. where he has an estate. 
 6 . where he pays a share towards the public taxes or le¬ 
 vies of the parish, other than as excepted by 35 Geo. III. 
 c. 101. 
 
 # 
 
 General Previous to treating in detail of the several kinds of 
 rules. settlements, it may not be improper to mention two gene¬ 
 ral rules which are to be attended to by magistrates in 
 making orders of removal, and determining appeals. 
 
 First, A subsequent settlement always destroys that 
 which is previously acquired by the same person, and con¬ 
 tending parishes are to look to this as the only means by 
 which a settlement once actually gained can be defeated. 
 « A man cannot give away, or release or suspend his set¬ 
 tlement ; for the public is concerned in it, as well as him¬ 
 self.” (3) 
 
 \ 
 
 (1) See 26 Resol. of Judges 1633. Green, Burr. S.C. 482. 2 Bolt, 37. 
 
 *nte, 74 Z. PI. 59 - 
 
 fa) Rex v. St. Matthew’s Bsthnal (3) Per Rider, C.J. Rex v. St. 
 
 Botolph’sBtshopsgate,Burr. S. C. 367. 
 
 The 
 
— 
 
 
 Of the several Kinds of Settlements, fyc. 257 
 
 The second is, that no settlement can be legal which is 
 brought about by practice or compulsion. (1) 
 
 (1) 26 Resol. Judges 1633. Dult. to the case of settlement by marriage, 
 
 236- 3 Burn’s Just. tit. Poor (Set- where the marriage continues good : at 
 
 tlement). And see Missenden v. least during the life of husband and 
 Grimsfield, Fol. 157. 1 Bott, 390. wife, and while they live together. 
 
 Pi. 416. J 3 ut this rule does not apply See post. p. 239. n. 7, 
 
 
 
 
 
 VOL. I. 
 
 6 
 
Husband’s 
 
 settlement 
 
 supersedes 
 his wife’s, 
 
 but is sus* 
 pended if he 
 has none. 
 
 ( 258 ) 
 
 CHAPTER XVII. 
 
 \ 
 
 Sect. I. Of Settlement by Marriage. 
 
 W HEREYER a woman intermarries with a man who 
 has obtained a known settlement, it is commu¬ 
 nicated to her, although she has never been where it is 
 gained. (1) 
 
 And every succeeding settlement that he acquires is in 
 like manner transferred to her immediately. Wherever 
 the husband therefore has a settlement, that which the 
 wife had previous to marriage is absolutely superseded by 
 virtue of the rule already mentioned (2); and she cannot 
 gain a new one by any act of her own during her husband’s 
 lifetime, even by residence upon her own estate, after he 
 has deserted her and his children. (3) 
 
 But when the husband has no settlement, not being 
 born in England or Wales, nor having acquired one 
 during, his residence (4), or which is the same thing, if 
 born there, that which he had cannot be discovered; the 
 wife’s settlement is not totally destroyed by marriage, but 
 
 (1) St. Giles v. Eversley, 2 Sess. 
 Cas. 116. 2 Bott, 81. PI. ii 7. Ap- 
 potens v. Dunswell, as reported, lb. 
 80. PL 116. is contra. 
 
 (2) Ante, p.256. 
 
 (3) Berkhamstead v. St. Mary 
 North Church, 2 Bott, 33. PL 56. 
 Rex v. Aythorp Rooding, Burr. S. C. 
 41a. and see Rex v. South Lynn, 
 5 Term. Rep. 664. post. 
 
 (4) Rex v. Wilsborough Green, 
 Fol. 249. St. Giles v. St. Margaret’s 
 Westminster, lb. 83. PL 121. Rex v. 
 Chidingstone, 1 Str. 683. I Sess. Cas. 
 104. Rex v. St. Botolph’s Bishops- 
 gate, Burr. S. C. 367. Per Lord 
 Hardwicke, Berkhamstead v. St. Mary 
 North Church, ante, (3). 
 
 remains 
 
t 
 
 ... \ 
 
 , Of Settlement by Marriage. 
 
 remains suspended during his life, or. perhaps more pro¬ 
 perly during cohabitation. So that if the parties cohabit 
 together and become chargeable, she cannot be separated 
 rom her husband, against his consent, although lie has no 
 settlement to which she can be removed, and it must fall 
 to the parish in which they dwell to relieve them both as 
 casual poor (i). But if the husband having no settlement, 
 ies (2 Jj or leaves his wife, and it is not known whether 
 :e is living or dead (3); or running away, lives separate 
 t. om her (4); or being unable to maintain her, consent to 
 t le temoval 5the settlement she had previous to mar¬ 
 riage continues, so that she may be removed thither 
 when chargeable. It is therefore said to be suspended 
 under these circumstances, as being liable to be destroyed 
 it the husband shall gain one subsequently, althouo-h he 
 
 has deserted her (6 ); or to be revived under the circum¬ 
 stances above stated. (7) 
 
 SECT. 
 
 
 59 
 
 (1) Rex V. Carlton, Burr. S. C. 
 
 813. 
 
 (2) Appotens v. Dunsvvell, i Sess. 
 Cas. 8c. Rex v. Westerham, 2 Const 
 n>. 83. pi. 1 22. 
 
 (3) Rex <*. Ryton, Cald. 39. 
 
 (4) Rex 11. Wilsborough Green, 
 Gilb. Rep. 79. Rex St. Botolph’s 
 Bishopsgate, Burr. S. C. 367. and the 
 cases cited supra. But Stietton «*. 
 Norton, Andr. 307. Burr. S. C. 122. 
 w contra. 
 
 ( 5 ) Rex v. Eltham, 5 East, 113. 
 
 (6) Rex v. Witton cum Twam- 
 brookes, 3 Term Rep. 355. The 
 
 case of a father's settlement gained 
 after deserting his family, communi¬ 
 cated to an unemancipated son. 
 
 (7; Mr.Const lias stated in the digest 
 of his useful book, title Marriage, and 
 in his marginal abstract, Rex Ed¬ 
 wards, 2Bott, 68. PI. 100 . Rex 
 Watson, lb. 70 . PI. 103. Rex^.Tar- 
 
 S 
 
 rant, lb. 74* PI. 109. That a marriage 
 piocuied by bribery or anv other 
 means, with a fraudulent design to 
 confer a settlement, will do so. He 
 states further in his abstract of Rex v. 
 Smith, Ibid, 76. PI. 113. that “ the 
 “ m arriage of a lunatic, though pro- 
 “ cured with the design to change 
 “ her settlement, is good.” The reli¬ 
 gion of the country intermixes itself 
 so entirely with the contract of mar¬ 
 riage, that when it is once celebrated, 
 all civil rights must follow from it 
 whatever may be thd parties motives 
 for entering therein. Although the 
 marriages were brought about, in the 
 fist class of cases, by the procurement 
 of parish officers, yet the parties being 
 habiles ad contractandum matrimo- 
 nium, the nuptial engagement confers 
 upon them and their issue the right of 
 settlement, with all others, that are 
 consequent upon the state. But there 
 2 
 
 seems 
 
/ 
 
 260 Of Settlement by Marriage. 
 
 I 
 
 / ^ . * . " ? * f i 
 
 SECT. II. 
 
 Of the Proofs necessary to establish a Settlement by 
 
 Marriage. 
 
 Proofs of Altkough the pauper is removed as a married woman. 
 Settlement. foe g U fft c i e nt to prove in support of the ordei that 
 
 her maiden settlement is in the place to which she is re¬ 
 moved, and the other side must shew a settlement of the 
 husband elsewhere to get rid of it, and that whether he i» 
 dead(i) or living(2). Neither will it make any differ¬ 
 ence if it appear that the parish proving this kind of settle¬ 
 ment have not used due diligence in endeavouring to 
 procure the husband’s attendance, or accounting for his 
 absence, or in enquiring as to his settlement, or that he is 
 described in the marriage register as being of another 
 parish, for that is no evidence of his settlement. (3) 
 
 But where either the appellant or respondent parish 
 mean to rely upon a settlement by marriage, they must 
 be prepared to prove, 1. the marriage5 2. the husbands 
 settlement. 
 
 • ^ „ K ' V 1 v 
 
 seems considerable doubt whether the the marriage must be valid. But tins 
 lunatic’s marriage would be good, not position seems inaccurate, for the 
 upor* the ground of the overseers crime is complete, if the fact by pos- 
 having procured it, but of the lunatic’s sibility might have put the parish to 
 incapacity to contract, i Blac. Com. expence, especially in cases of conspi- 
 4-59. and the cases there cited ; also racy, which all these seem to have 
 post. 273. None of the cases mentioned been, except perhaps Rex v. 1 arrant, 
 by Mr. C. prove either position for (i) Rex v. Ryton, Cald. 29* 2 Bott, 
 which he cites them, they only decide 649. PI. 699. Rex v. Woodsford, 
 that it is punishable to pi'ocure such Cald.236. 2 Bott, 92. PI. 132. 
 marriages. f rhe legality of the mar- (2) Rex v. Hedsor, lb. PI. 135 * 
 riage and settlement seems inferred, Cald. 371 ’ Rexu. Harberton, 13 East, 
 because the procurement would not be 311. 
 
 civilly punishable unless it had thrown (3) Rex v. Halberton, ante, n. (2). 
 a burthen upon the parish, to do which 
 
 Marriage 
 
a<5i 
 
 Qf Settlement by Marriage . 
 
 Marriage is celebrated either by banns or licence ( i); i. Marriage, 
 which are regulated so far as to effect the validity of the 
 marriage, by 2 6 Geo. II. chap. 83. By sect 1. all banns *6 Geo.SL 
 of matrimony, where the parties dwell in the same parish, c ' 33 ’ 
 are to be published in the parish church, or a public 
 chapel belonging to the parish, in which banns of matri¬ 
 mony have been usually published, upon three Sundays 
 preceding the solemnization. If they live in different 
 parishes, the banns are to be published in both; and if 
 one or either is an extra-parochial place, then in some 
 church or chapel belonging to an adjoining parish: and 
 in all cases where banns have been published, the mar¬ 
 riage shall be solemnized in one of the parish churches 
 or chapels where such banns have been published, and in 
 no other place. 
 
 t f~ ^ . .* 
 
 By the same act, sect. 11. all marriages solemnized by Sect. n. 
 licence, after 25 th of March 1754, where either of the 
 parties, not being a widower or widow , shall be under 
 the age of twenty-one years, which shall be had without 
 the consent of the father of such of the parties so under 
 age (if then living) first had and obtained, or if dead, of 
 the guardian or guardians of the person of the party so 
 under age, lawfully appointed, or one of them; and in 
 case there shall be no such guardian or guardians, then of 
 the mother (if living and unmarried ); or if there shall be 
 no mother living and unmarried, then of a guardian or 
 guardians of the person appointed by the court of chan- 
 cery; snail be absolutely null and void to all intents and 
 purposes whatsoever. 
 
 By sect. 12. where the guardians or mother shall be Sect, a 2 .. 
 non compos mentis , or shall refuse or withhold their con¬ 
 sent, the.n the person desirous of marrying may petition 
 
 (1) A licence for marriage is subject to a 1 os. stamp by 44 G, III, c. 08. 
 
 Schedule (A). 
 
 ■ s 3 the 
 
262 Of the Proofs 
 
 the Lord Chancellor, Lord Keeper, or Lords Commis¬ 
 sioners of the Great Seal, who may hear it in a summary 
 way; and if they judicially declare by an order that the 
 marriage is proper, it shall be as effectual as if the guar¬ 
 dians had consented. 
 
 Sect. 4. By sect. 4. no licence shall be granted to solemnize 
 
 ' matrimony in any church or public chapel, except those 
 
 belonging to the parish or chapelry within which the usual 
 place of abode of one of the persons to be married shall 
 be for the space of four weeks immediately previous to 
 their granting such licence. 
 
 And if both or either dwell in an extra-parochial 
 place, having no church or chapel where banns have 
 been usually published, then in a parish church adjoining: 
 but by sect. 6. this does not extend to deprive the arch¬ 
 bishop of Canterbury of his right to grant special licences 
 to marry at any convenient time or place, pursuant to 
 25 Hen. VIII. c. 21. 
 
 . ' - ' , : » 
 
 Sect. 10. By sect. 10. after solemnization of a marriage by banns , 
 
 proof of the parties dwelling where the banns were pub¬ 
 lished ; or, where it is by licence , that the usual place of 
 abode of one of the persons, was for four weeks in the 
 parish or chapelry where the marriage was solemnized, 
 shall not be necessary in support of the marriage; nor 
 shall any evidence in either of the said cases be received 
 to prove the contrary, in any suit touching the validity 
 of the marriage. 
 
 By sect. 18. the act is not to extend to Scotland; nor 
 to marriages among quakers or jews, w r here both parties 
 are quakers or jews 5 nor to marriages solemnized beyond 
 the seas. 
 
 / 
 
 All 
 
of Settlement by Marriage. 
 
 All marriages celebrated since the period mentioned in 
 this statute, in England and Wales, must conform to its 
 pi ©visions, or no settlement can be gained in consequence 
 thereof; for the act declares that the marriage shall be 
 null and void to all intents and purposes. (:<) 
 
 It was further determined by the court of king’s bench, 
 with great reluctance, that a marriage regularly cele-> 
 
 Oiated by banns in a chapel, erected since the passing of 
 the statute, and not upon the scite of any ancient church 
 01 chapel, was void, and that no settlement could be* 
 gained under it. The act expressly referring to churches 
 and chapels in which marriages were usually celebrated 
 at the time it passed. (2) 
 
 But this disgraceful consequence of a law of very 21Geo.nr. 
 questionable policy, was remedied by 21 Geo. III. c. 53. c * J 3 * 
 which enacted, that all marriages solemnized in any 
 church or public chapel, erected since the passing of 
 26 Geo. II. shall be as valid in law as if they had been 
 solemnized in churches or chapels, having chapelries an¬ 
 nexed, wherein banns had been usually published before 
 or at the time of passing thereof, and that the registers of 
 such marriages shall be received in evidence. 
 
 Sect. 4. provides, that such registers shall be removed Sect. 4. 
 within twenty-one days after 1st Aug. 1781, to the pa¬ 
 rish church of the parish in which the chapel is situated, 
 or if in an extra-parochial place, to that which is next 
 adjoining. 
 
 And by 44 Geo. III. c. 77. and 48 Geo. III. c. 127. 44 Geo. nr. 
 these provisions have been extended to all marriages c * 77 ’ 
 celebrated in such chapels before the 23d Aug. 1808, 
 
 (1) Rex Preston, Burr. S.C. 4 36 . (a) Rex z>. Northfield, Dougl. 659. 
 
 aBott, 70. PI. 105. • Cald.115. 
 
 S 4 
 
 263 
 
 > 
 
 \ 
 
 and 
 
Of the Proofs 
 
 ] ■ \ • ■ _ 
 
 and the registers are to be preserved and be evidence ft* 
 in 2 6 Geo. II. c. 33. 
 
 Bastards The 26 Geo. II. extends to all persons married inEng- 
 *6 Geo. IT. land and Wales > exce P t j ews or q uakers “ Illegitimate 
 c. 33. children, although looked upon by law as not having 
 
 any father, are held to be within it; a marriage therefore 
 by licence, between two illegitimate children who were 
 minors, without consent of parents or guardians, was 
 held void, and that it did not confer the man’s settlement 
 upon the woman nor upon his children by her. (1) 
 
 The court of king’s bench were further of opinion, 
 that the power of consent given to the “ father and mo- 
 « ther,” was intended to include reputed parents, as 
 being interested in their children’s welfare, and bound to 
 provide for tliem by the laws of nature; and neld, that 
 the marriage of such minor, with the consent of her pu¬ 
 tative father, was valid in law, and would confer a settle¬ 
 ment. (2) 
 
 * ' # * / 
 
 Subsequent to these decisions, however, the case of 
 Horner and Liddiard came before the consistorial court 
 in London, 44th May 1799. Miss Liddiard was an ille¬ 
 gitimate minor, whose supposed father, John Whitelock, 
 died when she was 11 years old. He left her a consider¬ 
 able fortune by will, which he directed to be paid to her 
 when she should attain the age of twenty-one, or the day 
 of marriage with the consent and approbation of her 
 mother Sarah Liddiard, and George Ashley, 01 the sur¬ 
 vivor of them; to whom he further gave the tuition and 
 care of his daughter during her minority. Miss Liddiard, 
 when a minor between eighteen and nineteen years old* 
 
 * v » 
 
 (1) Rex v. Hodnott, i Term (a) Rexv. Edmonton, Cald. 435 - 
 Rep. 96. Rex v. Preston, Burr. S. 
 
 C, 486. . * 
 
 was 
 
of Settlement by Marriage. 
 
 was married by special licence to Thomas Strangeways 
 Horner, Esq. who had then arrived at the years of legal 
 discretion. The licence stated that the marriage was so¬ 
 lemnized by and with the consent of Sarah Liddiard, 
 there styled Sarah Whitelock, widow, her mother and 
 guardian ; and which consent was in fact obtained. The 
 report does not state whether Mr. Ashley, to whom the 
 joint power of consenting to Miss Liddiard’s marriage 
 was given by Mr. Whitelock’s will, was living or dead; 
 and it was proved that no guardian had been appointed 
 in chancery. 
 
 # , ' 
 
 In February 1799, Mr. Horner instituted a suit to ob¬ 
 tain a sentence pronouncing the marriage null and void, 
 the proper consent not being obtained under sect. 11. of 
 the act. The learned judge, Sir William Scott, was of 
 opinion with the court of king’s bench, that illegitimate 
 minors are within the statute, and therefore that consent 
 was necessary to render the marriage valid ; but he dif¬ 
 fered from that court, where they held, that the reputed 
 parents are enabled to consent, and was of opinion that 
 it could be lawfully given only by a guardian appointed 
 by the court of chancery, and that otherwise the mar¬ 
 riage is a nullity. He observed, that the court of chan¬ 
 cery considered this to be the law, by uniformly appoint- 
 ing guardians to consent to the marriage of bastards, 
 although the father and mother were living; that the 
 ecclesiastical court followed the court of chancery in 
 adopting that construction, and has always refused to grant 
 licences upon the mere consent of the natural father or 
 mother, and unless it is stated that they are the lawful 
 father and mother; and he had always understood that 
 the form of the affidavit upon which licences are now 
 granted was originally settled at the time of passing the 
 act, upon great consideration, and by eminent lawyers 
 
 of 
 
266 
 
 Of the Proofs 
 
 of both professions; for want of which consent, he an¬ 
 nulled the marriage in the case before him. (i) 
 
 The authority of this case is supported in a solemn 
 decision by three judges in the court of King’s Bench, 
 who certified in a case sent for their opinion from the 
 rolls, 44 that all marriages whether of legitimate or ille¬ 
 gitimate persons, are within the general provision of 
 26 Geo. II, c. 33. which requires ali marriages to be by 
 banns or licence; and that the consent of the natural 
 - mother by licence of an illegitimate minor is not a suf¬ 
 ficient consent within the 11 th section of that act, and that 
 his marriage is void. (2) 
 
 But though the marriage, if celebrated in England, 
 must comply with the provisions of the act, yet if minors 
 domiciled in England, withdraw themselves into Scot¬ 
 land, or places beyond the seas, even for the purpose of 
 evading, and, as it were, in fraud of the statute, the 
 marriage is good to all intents and purposes. (3) 
 
 (1) Dr. Croke’s Report of Horner 
 Liddiard, determined 24th May 
 
 1799. The learned judge adhered fo 
 this opinion in the case of Daniel v. 
 Cooke. 
 
 (2) Priestly v. Hughes, 11 East, 1. 
 Grose,J.differed from the other judges, 
 and certified that the legislature 
 from the words of sect. XI. seemed to 
 have only in their contemplation the 
 marriages by licence of such legitimate 
 children, who had or might have either 
 parents to consent to the marriage of 
 such children,or guardians whom the le¬ 
 gislature intended to substitute for such 
 parents under different circumstances, 
 and that they had riot in their con¬ 
 templation to provide for the marriages 
 
 of illegitimate children whose parents 
 could not legally forbid the banns if 
 they were to be married by banns, and 
 who could have no such parents as are 
 intended to be described in the nth 
 section of the act above mentioned, 
 that is, legitimate parents, if they were 
 to be married by licence, and therefore 
 that such a marriage was by banns onu- 
 fruo in the statute, and good and law¬ 
 ful. The question is now depending 
 before the House of Lords, in an ap¬ 
 peal from the decree in this case. 
 
 (3) Crompton i>. Bearcroft, Bull. 
 L. N. P. 113. And the opinion of 
 Eyre, C. J. Philips v. Hunter, 2 H. 
 Black. 412. llderton -v . Ilderton, 2 H. 
 Blaek. 145. 
 
 * 
 
 A sol- 
 
of Settlement by Marriage . 
 
 A soldier on service with the British army in St. Do¬ 
 mingo, being desirous of celebrating marriage with the 
 widow of another soldier who died there, the parties 
 went to a chapel in the town, and the ceremony was 
 pei foi med by a person appearing as a priest, and 
 officiating as such, the service being in French, but in- 
 teipieted into English by one who officiated as clerk, and 
 which the pauper understood at the time to be the mar¬ 
 riage service of the church of England. This was held 
 sufficient evidence after 11 years cohabitation, that the 
 marriage was properly celebrated, although the pauper 
 stated that she did not know that the person officiatincr 
 was a priest. (i) 
 
 In England where a marriage is celebrated in pursuance 
 of banns, they must be published in the real names of both 
 parties, or it is null and void; because the very end and 
 object of the publication of banns w r ould be defeated if it 
 were not to convey a true description of the persons (2). 
 
 The 
 
 (1) Rex v. Brampton, io East, 2S2. 
 Lord Ellenborough, C. J. delivered his 
 opinion, 1 st, considering it as a marriage 
 in a place where the law of England 
 prevailed, and must be supposed (in 
 the absence of evidence to the con¬ 
 trary) that the law of England, eccle¬ 
 siastical and civil, was recognized by 
 subjects of England in a place occupied 
 by the king’s troops, this would be a 
 good marriage before the marriage act, 
 and consequently vvouid be so now in 
 a foreign colony to which that act 
 does not extend. It was celebrated by 
 a priest, that is, by one who publicly 
 assumed the office, and appeared 
 habited as such. It did not appear 
 what persuasion he was of, but if he 
 had been a catholic priest, the mar¬ 
 riage would have been good in England, 
 
 as a contract per verba de prsesenti, in¬ 
 dependent of the provisions of the mar¬ 
 riage act. 2d. Supposing the law of 
 England not to have been carried into 
 St. Domingo by the king’s forces not 
 obligatory upon them in that particu¬ 
 lar; the facts stated would be evidence 
 of a good marriage according to the law 
 of that country whatever it might be, 
 and every presumption must be made 
 in favour of its validitv. 
 
 (2) I understand this to have been 
 settled by many decisions in the Con- 
 sistorial Court, and it was recently ad¬ 
 hered to by Sir W. Scott in the case of 
 Mather v . Neigh, falsely calling her¬ 
 self Mather, 1 rinity Term, 47G. III. 
 “ The woman’s real name was Neigh, 
 “ and ,n the banns published she was 
 “ called by the name of Wright, being 
 
 u tlie 
 
2(58 
 
 Direct proof 
 of marriage. 
 I. Copy of 
 register. 
 
 Entry in 
 register, 
 
 \ 
 
 Of the Proofs 
 
 i 
 
 The banns also must be published three times to render 
 it valid. (i) 
 
 For the purposes of a settlement, a marriage may be 
 proved several ways: ist, By an examined copy of the 
 register (2), and some evidence of the identity of the par¬ 
 ties, as if the hand writing of the husband and wife to the 
 register is proved (3); or by people who came to the 
 wedding dinner, or who were paid by them for ringing 
 the bells for the wedding, or any other circumstances suf¬ 
 ficient to satisfy the court that they were the same per¬ 
 sons. (4) 
 
 The 26 Geo. II. c. 33. requires that marriages shall be 
 solemnized in the presence of two or more credible wit¬ 
 nesses, besides the minister who shall celebrate the same; 
 and that it shall be entered in the registry, in which entry 
 shall be expressed, whether the marriage was celebrated 
 by banns or licence, and signed by the minister and the 
 
 . ' * 
 
 tl the name of a family into which she Lit. 3 * But a man or a woman can 
 11 was said to have been adopted upon only change their name ot baptism 
 a the death of her parents. It was in when they are con filmed, in which ca,' .3 
 <c proof that she had been supported they must afterwards use the name 
 “ by that family for a considerable taken at confirmation. Resolved by 
 “ time; but there being a complete all the judges in Sir Francis Gavvdy s 
 “ failure of evidence to sustain the case, Ibid. 
 
 “ material fact of her having gone by (i) Post. 2,70. (6). 
 
 “the name of Wright, the learned (2) A certificate of marriage is sub- 
 
 “ judge pronounced a judgment decla- ject to a stamp duty of 5s. 44 G. III. 
 « ratory of the nullity of the mar- c. 98. Schedule (A.) But certificates 
 u riage.” It appears from this note, of the marriage of a common sailor, 
 that if the party had passed by her as- marine, or soldier, are excepted, Ibid, 
 sumed name for a sufficient period so. as ( 3 ) But the register itself must lie 
 to be commonly known by it at the produced in this case. A copy of the 
 time when the banns were published, register of marriage kept in a chapel 
 that it would have been good,and with in a foreign country is not admissible 
 this the common law appears to coin- in evidence. Leader v. Barry, 1 Bspin. 
 cide. “For a man may have divers N. P. C. 353. 
 
 names, [i. e. surnames,] at divers times, (4) Barlow, Dougl. 162. 
 
 but not divers Christian names,” Co. Bull. L. N. P. 27. 
 
 i g parties 
 
I 
 
 of Settlement by Marriage . 269 
 
 • ' » ^ 
 
 parties married, and attested by two witnesses; but tliis not essential 
 
 entry in the register is not of the essence of the marriage; ^ty? vah ~ 
 so that where there was an entry of a marriage by banns, 
 and neither the minister, the parties, nor the witnesses had 
 signed it, the marriage was held valid for the purposes of 
 settlement. {j) 
 
 Even where the witnesses do sign, it is not necessary 
 to produce them, as it would be in the case of deeds or 
 any other attested instrument that is adduced in evi¬ 
 dence. (2) 
 
 3. Their 
 declaration. 
 When not. 
 
 2. The marriage may be proved by any person present 2. B y P er ~ 
 at the ceremony (3); even the husband and wife; and Husband^' 
 these last are also competent witnesses to disprove the and wif ? 
 fact (4); or their declarations after their death (5), Or nesses, &c. 
 reputation in the family (6). But neither husband nor 
 wife are admissible to prove the fact of marriage, where 
 it might tend to criminate the other: and upon the same 
 principle of public policy, their evidence shall not be ad¬ 
 mitted, -when it tends that way, even in collateral cases. 
 
 Where therefore a marriage in fact was proved between 
 two paupers, a former wife was held not to be a compe¬ 
 tent witness to establish her previous marriage with the 
 husband (7). But this rule seems to depend entirely 
 on the principle of moral convenience, for if the husband 
 is dead, the first wife may prove the marriage. (8) 
 
 (1) Rex<w. St. Devereux,Burr.S. C. v. Chesr.am, 2 Bott, 75. PI. 112. 
 506. S. P. Per Lord Kenyon, Read <v. Rex v. Edmonton, Cald. 435. 
 
 Passer, Peake’s Ni. Pri. Ca. 231. (5) Rex o'. Bramley, 6 TermRep. 
 
 (2) Bull. L.N. P. 27. Yet query if 130. 
 
 it be not necessary when the register (6) Reed 1/. Passer, Peake’s Ni. 
 itself is produced. ri. Cas. 231. 
 
 ( 3 ) Bull. L. N.P. 27. (7) Rex v. Cliviger, 2 Term Rep. 
 
 (4) Standen v. Statiden, Peakes 263. See also Davis v, Dinwoody, 
 N>* Pri. Cas. 32. Rex v. St. Peter’s 4 Term Rep. 678. Bentley <v. Cooke* 
 Worcestershire, Burr. S. C. 25. Rex 2 Term Rep. 265.269. 
 
 v, Stockland, Burr. S. C. 508. Henley (8) Henley <v. Chesham, 2 Const. 
 
 75 * PI. 1 12. 
 
 3- By 
 
2>70 
 
 ,3. Cohabita¬ 
 tion. 
 
 4. Ecclesias¬ 
 tical sen¬ 
 tence. 
 
 5. By ad¬ 
 mission 
 when con¬ 
 clusive. 
 
 I. Certifi¬ 
 cate. 
 
 2 . Order of 
 removal un¬ 
 appealed 
 from. 
 
 
 
 Of the Proofs 
 
 3. By the presumption arising from the conduct of the 
 parties to each other, as where they cohabited together 
 for the space of thirty years, and treated each other as 
 man and wife (1). Indeed in every civil case, except an 
 action for criminal conversation, general reputation, the 
 acknowledgment of the parties, and reception by their 
 friends, &c. as man and wife, is sufficient proof of co¬ 
 verture, (2) 
 
 4. Where a marriage is in fact had, or in a contract 
 in prresenti , or in a suit for restitution of conjugal rights, 
 a sentence in the ecclesiastical court having proper juris¬ 
 diction, whether it be a foreign court or not. will, (unless 
 there be collusion, which will overturn the whole) be con¬ 
 clusive, and bind all. But not if given in a collateral suit, 
 as for a criminal action; for it will only bind the right 
 of the marriage in the three cases above. (3) 
 
 5. The strongest of all proofs is when the parish against 
 which it is sought to establish the marriage, have so far 
 admitted the fact as to be estopped from controverting it. 
 As where it has granted a certificate in which it acknow¬ 
 ledges the parties to be man and wife (4); although she is 
 only described as his wife generally without being named 
 therein, and has a former husband living (5). Also where 
 the man and woman have been removed as husband and 
 wife (6); or where the woman is removed as married, 
 
 (1) Rex <v. Stockland, ut supra, 269. 
 n. (4). 
 
 (2) Per Lord Kenyon, C. J. Leader 
 v. Barry, i Espin. N. P. C. 353. 
 
 (3) Per Lord Hardwicke, C. Roach 
 •v. Garvan. 1 Ves. 159. And it is 
 equally conclusive if established in a 
 foreign court according to the law cf 
 nations. Eod. Jud. Ibid. See also 
 Duchess of Kingston’s case, post, 
 273- (2). 
 
 14 
 
 (4) Rex v. Headcorn, Burr. S. C« 
 253. Rex *>. Ullesthorpe, 8 Term 
 Rep. 465. 
 
 (5) Rex V . Lubbenham, 4 Term 
 Rep. 251. 
 
 (6) Rex v. Silchester, Burr. S.C. 
 551. Rex v. Berkswell. Rex v. Bine- 
 gar, 7 East, 377. where the order was 
 stated to be made on the evidence of 
 the'wife only, for she may know the 
 fact as well any other witness. 
 
 without 
 
of Settlement ly Marriage. 27 
 
 without her supposed husband, and the parish to which 
 tne removal is made, has not appealed against the 
 order (1). So if she is removed by the name and de- 
 , scription of “ E. Smith, widow,” it is conclusive of her 
 husband s settlement, it he is then alive, and the order 
 unappealed from (2): for the presumptive conclusion to 
 be drawn from her being removed as a married woman, 
 or as a widow, where nothing is stated in the order to v 
 conti adict it, is, that she is removed to her husband’s set¬ 
 tlement; and it the parish did not mean to acquiesce 
 in that conclusion, they should have controverted it by 
 ah appeal. ' 
 
 ‘ ■ t - I 
 
 This evidence is so strong between the parties giving When con- 
 and receiving the certificate, or those removing and re- clusive * 
 ceiving the pauper, that it is absolutely conclusive of the 
 fact, so that it cannot be controverted by them, although 
 the marriage has never taken place. (3) 
 
 As between other parishes it is strong presumptive evi- When pre - 
 dence, but not so conclusive as to exclude proof to con- sum P live - 
 tradict it. 
 
 It is sufficient prima facie evidence of a regular mar- Proof of 
 riage, to establish the fact by any of the modes of proof raarr,ase ’ 
 already stated; it follows from thence, as matter of legal 
 assumption, until the contrary appears, that all circum¬ 
 stances necessary to render it valid did take place. 
 
 1 « 
 
 The party therefore who is interested to controvert it, 
 must come prepared to prove what he relies on to impeach 
 
 Proof to im¬ 
 peach its 
 validity. 
 
 (0 Rex *• Hinxworth, Cald. 43. (3) Rex v. Rudgely, 8 Term Rep. 
 
 Rex 1/. J.eigh, Dougl. 45. Rex <u. 630.; and 2s to the effect of orders of 
 
 Totvcester, 3 Bott. 679. PL 740. Rex removal unappealed from, see post. 
 
 St * Mar y Pambeth, 6 Term Rep. (3) Cases, p. 369. n. (8). 370. (x). 
 
 b\$. 
 
 the 
 
Of the Proofs 
 
 the validity (i), unless he can extract it by cross exami¬ 
 nation or otherwise, from such evidence as the adveisary 
 
 has produced. 
 
 I. Where These facts are, i st, That the provisions established by 
 voidab ini- the marriage-act have not been complied with, as, where 
 U0 ’ it is by banns, that they were not duly published three 
 
 several times (2). 2d, Where the marriage is null and 
 
 void ah initio without the sentence of a court ecclesiasti¬ 
 cal, as where one of the parties was previously married to 
 a person living at the time of the second marriage (3)9 
 where he who pretends to perform the ceremony is not m 
 holy orders (4). These circumstances may be proved by 
 oral testimony. 
 
 v 
 
 But it is not expressly decided, whether any other 
 cause which renders a marriage null and void ab initio 
 can be given in evidence in a temporal one, without pro¬ 
 ducing a judgment of the ecclesiastical court, or the 
 bishop’s certificate. It seems however most reasonable, 
 that all disabilities by which the marriage is rendered void, 
 may be examined into upon the same principle; and there¬ 
 fore that no settlement can be gained by marriage with 
 an idiot, or an insane person, unless celeblated during a 
 
 (1) Per Lord Mansfield, Rex. v. St. 
 Devereux, Burr. S. C. 306. 
 
 (2) Standen v. Standen, Peake’s 
 Ni. Pri. Ca. 32. See also Wilkinson 
 <v. Payne, 4 Term Rep. 468. ante, 215* 
 
 (3) Westbrook v. Strutville, 1 Str. 
 79. 
 
 (4) Sembl. Rex r u. Luffington, Burr. 
 S. C. 232. Haydon v. Gould, 1 Salk. 
 119. where the ceremony was per¬ 
 formed prior to the marriage-act. And 
 see Rex <v. Bedall, 2 Str. 1026. post. 
 Qusere tamen, and by Lord Kenyon, 
 C. J. before the 26 Geo. II. c. 33* 1 
 think (though I do not speak meaning 
 
 to be bound) that even an agreement 
 between the parties per verba de prae- 
 senti was ipsum matrimonium. Reed 
 •v. Passer, Peeke’s Ni. Pri. Ca. 232. 
 Per Pemberton, C. J. Weld v. Cham¬ 
 berlain, 2 Show. 300. and it is laid down 
 as clear law that a contract per verba de. 
 praesenti would have bound the parties 
 before that act. Per Lord Ellenbo- 
 rough C. J. Rex <v. Brampton, 10East, 
 282. Seealso Holt <y. Ward, 2 Stra. 937. 
 Swimb. 74. Wigmore’s case, 2 Salk. 
 438. Collins Jessot, 6 Mod. 155. 
 Rex v. Hodnett, t Term Rep. 96. 
 
 lucid 
 
Of Settlement by Marriage, 273 
 
 Jucid interval (1). By 15 Geo. II. c. 30. if persons found Lunatics, 
 lunatics, or committed to the care of trustees by any act 
 of parliament, marry before they are declared of sound 
 mind by the chancellor, or the majority of such trustees, 
 the marriage is totally void. 
 
 1 
 
 But where the sentence of an ecclesiastical court of 2. Sentencs 
 competent authority is necessary to annul the marriage, 
 it being good unless a judgment is pronounced during 
 the lives of both parties, the sentence must be produced; 
 and it is conclusive evidence of that fact, where the suit 
 was instituted for the express purpose of annulling the 
 marriage, and its validity cannot be controverted in a 
 ciiil suit, except on the ground of collusion between the 
 parties. (2) 
 
 Such a sentence seems, also upon principle, not less 
 effectual to establish than to annul the marriage. (3) 
 
 3. The sentence of a foreign court of competent 3. Sentence 
 authority, where the parties were domiciled at the ^ u ^ t foreisu 
 time; that is, where they abide with the purpose of 
 permanent residence; or any other form of divorce esta¬ 
 blished there between persons of the same religious per¬ 
 suasion. (4) 
 
 4. Divorce by act of parliament. 4 , statute. 
 
 For proof of the various ways by which the husband’s 
 settlement is to be established, see the subsequent titles of 
 settlement. 
 
 w.* - * 
 
 (1) 1 Black, uom. 439, 2 ut fa was Fines, fcc. 46. See also Cross <v. Salter, 
 formerly held, that if an idiot contract- 3 Term Rep. 639. and ante, 270. 
 
 ed matrimony it was good, and should (3) See Roach r v. Gafvan, ante, 217. 
 bind him. By 3 Judges, Manby v. Per De Grey, C. J. Dutchess of Kings- 
 Scott, and said to be so adjudged in ton’s case, 11 St. Tri. 261, 
 
 Stiles v. West. 3 Jac. (4) Ganer -v. Lady Lanesboroucjr, 
 
 (2) Duchess of Kingston’s case, II Peake’s Ni. Pri. Ca. 17. But it must 
 St. Tri. 198. Amb. 756. S.C. Dacosta be in a proper cause, and without .col¬ 
 and Villa Real, aStra 961. and the lusion. See Roach v, Gazvan, i, V^s. 
 cases cited in the note to the 3d edit. 157. ante, 27c. 
 
 Hume v. Burton. App. to Cruise on 
 
 VOL. I. T 
 
 i 
 
( *74 ) 
 
 1 . The fa¬ 
 ther’s settle¬ 
 ment at the 
 bnth. 
 
 a. Gained 
 alter. 
 
 .0 
 
 CHAPTER XVIII. 
 
 Of the Settlement of Legitimate Children by Parentage or 
 
 Birth. 
 
 r j^HE second species of derivative settlement is acquired 
 by relationship between parent and child. The ori¬ 
 ginal settlement of legitimate children being that which 
 the father has at the time of their birth, and it makes no 
 difference that the child is born in another parish (i), or 
 that the father dies previous to the birth (2), or that nei¬ 
 ther he nor the son have been in the place of settlement 
 since the latter was born. (3) 
 
 The manner in which the parental settlement has been 
 acquired is equally immaterial. It may be gained by the 
 father's own act, or derived from his father or grandfather, 
 or any other more remote relation to whom a settlement 
 is first traced in the direct ascending line. (4) 
 
 But although the father's settlement at the time of birth 
 is the original settlement of his legitimate offspring, it is 
 superseded if the parent gains one subsequently, while 
 the child continues to form a part of his family. (5) 
 
 r r. r-j f , \ V,. „.J v. • • ■ r • 'it 
 
 (s) Coxwell V. Shillingford, Fort. (3) Sr. Giles Reading v. Eversley 
 313. This was once doubted. See Blackwater, 1 Str. 580. 
 
 Rex v. Xuckington, Comb. 380. (4) R ex v. St. Matthew’s Bethnal 
 
 3 Salk. 257. 2 Bott, 22. PI. 39. But Green, Burr. S. C. 48a. 
 the law is now quite settled- (5) See post. 277' 
 
 (-2) Regina Clifton, Abr* 382; 
 and se® Cunrasr v. Miiton, 6 Mod. 87, 
 
 "Where 
 
Settlement of Legitimate Children by Parentage or Birth. 2 7 5 
 
 Where the father has not a known settlement before The mo¬ 
 llis child becomes chargeable, that which the mother had ther s f 
 previous to her marriage is communicated in the same birth, 
 manner, and subject to the same rules. (1) 
 
 But as the father s settlement, where he has one. must 
 idw ays fix that of his child, it is obvious that recourse 
 should be had to the settlement of the father’s mother, 
 prior to that of the pauper’s own mother, for it is the 
 father’s settlement, if his father have none; and upon 
 the same principle, that of the father’s grandfather’s 
 mother precedes that of his own mother, and so on to 
 the more remote degrees of lineal ancestry. 
 
 Thus where Elizabeth Taylor was born in St. Cathe¬ 
 rine’s, and married Edward Brazier, whose settlement 
 was unknown : his widow afterwards married Isaac Coif- 
 feau, a Frenchman, w ho never gained a settlement. She 
 hau by him Abraham CoifFeau, bom in the parish of 
 Bethnal Gicen. Abraham married Mary Dormer, whose 
 settlement was in St. Leonard’s, Shoreditch. Abraham 
 died, and Mary his widow, with her children, be¬ 
 coming chargeable, they were held to be settled in St. 
 Catherine’s, being the birth settlement of Elizabeth, 
 
 Abraham s mother; for there is no distinction between 
 4 an acquired settlement and a derivative one; the positive 
 law in these cases of settlements is, that the child’s set¬ 
 tlement follows that of its father, if the father’s can be 
 found. (2) 
 
 But the right of settlement is only gained by the 
 heads of families for their lineal descendants, and is not 
 
 (1) Rexi;.Sr.Botolph’ s ,BuiT.S.C. (2) Rex */, St. Matthew’stBetW 
 567. Tynton v. King’s Norton, lb. 31, Green, Bu*r. S. C. 482. 
 
 PI. 54.; and see 26 Resol. of Judges 
 of Assize 1633. ante > 2J7- 
 
 T 2 
 
 trans- 
 
2 .,5 Of the Settlement of 
 
 ' transmissible through collateral branches, as from uncles 
 or cousins; nor in the ascending line, from child to pa¬ 
 rent ; as real property would in the first case, and per¬ 
 sonal in both. 
 
 The settlement which a child derives from its mother 
 during the father’s lifetime, must be acquired previous to 
 her existing marriage, for she can acquire none during 
 coverture, except through her husband. (i) 
 
 But if the father die, the mother becomes the head of 
 the family, in which event nature and the law casts the 
 obligation to provide for it upon her. A settlement there¬ 
 fore gained in her own right during widowhood, is 
 communicated to her unemancipated children (2), al¬ 
 though past the age of nurture (3). But if she acquire a 
 settlement by another marriage, it is not gained as the 
 head of a family, but as a subordinate part of some 
 other, and therefore is not communicated to her former 
 offspring. (4) 
 
 The rules respecting the transmission of parental set¬ 
 tlements acquired previous to the child’s birth, are too 
 clear to generate much doubt or discussion; it arises from 
 
 O 
 
 the relationship, and cannot be defeated by the parent’s 
 misconduct. 
 
 father at- A father who gained a settlement was attainted for fe- 
 tamted. ] on y . ^ marr i e q afterwards and had children, but re- 
 
 I. Settle¬ 
 ment from 
 the mother. 
 
 2. After 
 widowhood. 
 
 (1) Berkhampstead v, St. Mary 
 North Church, a Bott, 33. PI. 56. 
 and post. 
 
 (2) By renting a tenement of iol. 
 a-year. St. George <v. St. Catherine’s, 
 2 Lord Raym. 1474- Or 011 lands in 
 which she had a freehold estate in her 
 own right, 2 Ld, Raym. 1475 * P- ex 
 v. Oulton, Burr. S. C. 64. Or by re¬ 
 sidence on her husband’s estate, al¬ 
 
 though he could not gain one by a 
 like residence in his lifetime. Rex *v. 
 Long Wittenham, 2 Botr, 38. PI. 60. 
 and see Rex v. Paulsperry, 1 Barn, 
 II. 
 
 (3) Rex v. Barton Tuffe, Burr. 
 S. C. 49. 
 
 (4) Rex v. St. Giles’s in the Fields, 
 Burr. S. C, 2, 
 
 ceived 
 
Legitimate Children by Parentage or Birth . 277 
 
 ceived no pardon. It was held, that the settlement gained 
 before attainder was communicated to his children born 
 afterwards; for a settlement is not the property of any 
 man, it cannot escheat, nor be called a franchise. (1) 
 
 /• ^ 
 
 Neither will any incapacity in the child to sustain the 
 civil duties of life prevent it. Tims it has been decided, 
 
 (and it seems surprising that such a question should be 
 made), that an idiot, if legitimate, is settled where his 
 parents are. (2) 
 
 But the communication of settlements gained subse- 3.-Paternal 
 quent to the child’s birth, takes place only whilst it con- ^ a - lnecl a(ter 
 tinues a member of the parent’s family. When it ceases hirth com - 
 
 ^ nnuucated. 
 
 to beoso, or (to use a phrase borrowed from the Roman 
 law, and not very properly applied by us) after it is eman¬ 
 cipated, any settlement which the parent may acquire 
 subsequently is not transmissible; but it retains that de¬ 
 rived from the parent prior to emancipation, until it 
 obtains a new one by some other means. 
 
 There are two cases in which the child is considered Of emand- 
 as being severed from the parent’s family, without any F ‘ uou> 
 reference to a separation in fact. 
 
 1. When a child has obtained a settlement in its own When child 
 right, that previously acquired from the parents is super- 
 seded, and it no longer follows one that is subsequently 
 gained by them. (3) 
 
 The age at which a child is said to be capable of ac¬ 
 quiring a settlement by its own act, is seven years, at 
 
 (1) Rex V. St. Mary Cardigan, (3) Rex v. Witton cum Twsm- 
 6 Term Rep.-n6. See the opinion brookes, 3 Term Rep. 355. Rex v. 
 of Rider, C. J. ante. 256. Rexi/. Had- Silton, 1 Wils. 184. But see Rex v. 
 denham, 16 East, 463. acc. lngworth, 8 Term Rep. 339. pest. 
 
 (a) Hard’s case, 2 Salk. 427. vol. ii. 
 
 ^ 3 the 
 
2J& Of the Settlement by Parentage. 
 
 the expiration of forty days, after which it may acquire 
 one. (i) 
 
 When it 
 marries. 
 
 2. Where it becomes the head or part of another fa¬ 
 mily by marrying, that being a relation inconsistent with 
 a subordinate situation in that of its parents i 2). Thus a 
 son, who being of full age and married, afterwards re¬ 
 moved into another parish with his father, where he con¬ 
 tinued to live with him, was held not to follow a settle¬ 
 ment which the father subsequently acquired there. (3) 
 
 But marriage seems necessary to make a child the head 
 of a family when there is no separation. A son who, 
 after he was of age, continued to live with his mother, 
 then a widow, and residing under a certificate granted to 
 the husband, does not become the head of a new family, 
 nor is he emancipated by setting up in business for himself 
 and hiring servants of his own. (4) 
 
 Separation An actual separation is necessary in all other cases; for 
 a child may, after attaining the age of twenty-one, de¬ 
 rive a new settlement from its parent, provided it remain 
 at the time of its acquirement a member of the father’s 
 family, with an unbroken continuance. (5) 
 
 Separation 
 2nd return 
 during mi- 
 Bority. 
 
 Where a separation has taken place, this distinction as 
 to when it shall emancipate the child, or otherwise, has 
 
 (1) 3 Burn’s Just. tit. Poor. 3 Sc 4 
 Ed. VI. c. 16. and 14 Eliz. c. 5. per¬ 
 mit the separation of children from 
 vagrant parents at the age of five. See 
 23 Resol. of Judges 1633. Dalt. 236. 
 Dumbleton v. Beckford, 2 Salk. 470. 
 Pol. 271. 
 
 (2) At in nepotes avi potestns I10- 
 die nulla est quia nuptiis per univer- 
 sam Europam patria potestas solvitur, 
 nee reviviscit matrimonio liberorum 
 soluto, quia quod semel extinct urn 
 
 - 2 
 
 est sine nova causa non potest re- 
 nasci ; proinde viduae nihilo magis in 
 potestate sunt quam nuptae seu mino- 
 res sive majores. Hub. Prelect. Lib. 1. 
 Tit. ix. § 3 De Patria Potest. 
 
 (3) Rex v. Everton, 1 East, 526. 
 Bugden v. Ampthill, Burr. S. C. 270. 
 Rex v. Mortlake, 6 East, 397. 
 
 (4) Rex v. Sowerby, 2 East, 276. 
 
 (5) Per Lord Kenycn, C. J. Rex 
 v. Roach, 6 'Term Rep. 247. 
 
 been 
 
Of Emancipation. 279 
 
 been laid down: €£ If a child under the age of twenty- 
 ££ one years leaves his father’s house, and is thereby and 
 ££ severed from his father’s family, and returns to his 
 ££ father during a state of pupilage, during which time 
 66 policy requires that the child should be under the pro- 
 ££ tection of his father, he must be considered as incor- 
 ££ porated with his father’s family, unless he has gained 
 ££ a distinct settlement of his own, or has become the 
 ££ head of a family himself.” (1) 
 
 But if when that time arrives when in estimation of 
 law the child wants no further protection, he removes 
 from the father’s family, he is not for the purpose of a 
 derivative settlement to be deemed part of that 
 family. (2) 
 
 Thus a boy, when seven years old, resided nine or ten Boy residing 
 years with his uncle for support, returning occasionally ^cle^ &c. 
 to his father’s house, particularly upon any disagreement 
 with his uncle, and being looked upon as part of his 
 father’s family by all parties; he derived a settlement 
 from his father, which the latter had gained eighteen 
 months subsequent to the boy’s going to his uncle (3). 
 
 So where the father ran away when his soil was of the 
 age of eight, his mother dying half a year afterwards, 
 and he was supported by his parish until lie Was able 
 to maintain himself; he followed the settlement gained 
 by the father during his minority. (4) 
 
 Neither does it make any distinction, that the father, Controul 
 at the time of the separation, gives a master or any other ^ n er l “ 4 
 person a degree of legal controul over his child, provided 
 he reserves to himself so much of the parental rights 
 
 , ■ . r / 1 ‘ , , , r 
 
 (1) Ante/278. n. (5), post. 282. Cald. 284. See also Rex v, Offchurch, 
 
 (a) tlnd;*. 3.Term Rep. 114, 
 
 y) Rex v.Tottingtoa Lower End, (4) Rex v. Witton cum Twam- 
 
 broojkes, 3 Term Rep. 355, 
 
 T 4 
 
 as 
 
28o Of the-Settlement by Parentage. 
 
 as are consistent with it. Thus where a father hired out 
 his son at the age of thirteen, for several successive pe¬ 
 riods, but insufficient to confer a settlement, until he was 
 nineteen, received his wages and washed for him; the 
 boy never returned home during the time, except for 
 three weeks, from illness, and never lived with his father 
 .after leaving him thus, until the order of removal, which 
 was made when he was nineteen; he is not emanci¬ 
 pated. (i) 
 
 Hiring in A son hired as a yearly servant, in an extra-parochial 
 chiai place" place (where he could not gain a settlement), who re^ 
 turned to his father at the end ot the year unsettled, 
 under age, and unmarried..(2) 
 
 A son bound at the age of sixteen, under an indenture 
 for four years, which was void for want of a stamp, and 
 never after returning to his father’s house as a home (3), 
 was held not to be emancipated, but to follow the fa¬ 
 ther’s settlement subsequently acquired during the period 
 of minority. (4) 
 
 Jn certifi- Likewise a son was bound an apprentice at the age of 
 cattdpai.sh. ££ eenj f or f 0 ^ ir y ears> i n the parish where his father re¬ 
 sided, under a certificate. The father, during the ap¬ 
 prenticeship, acquired a settlement by residence in W. 
 another parish. The son, at the expiration of his ap¬ 
 prenticeship, being a minor, came to his father’s house 
 in W. whenever he pleased, and kept his holiday clothes 
 there, but was his own master to go and work where he 
 pleased: he was held to follow his father’s settlement 
 in W., being neither emancipated nor independent of 
 him. (5) 
 
 Apprentice 
 under void 
 indenture. 
 
 (1) Rex v. Strettpn, i Const. 47. (4) «• Collingbouyn Dupis, 
 
 PI. 74. ante,n. (1), was a case of emancipation 
 
 (a) Rex v. Collingbourn Ducis, from a certificate. 
 
 4 Term Rep. 199*. (5) Rexv. Halifax. Burr.5. c. ?C6. 
 
 (3) Rex v. Edgworth, 3 Term 
 Rep. 353. 
 
 S 
 
231 
 
 Of Emancipation. 
 
 • The father of the pauper being originally settled in 
 another parish about 40 years ago,, came to reside in 
 Hardwick upon a tenement under 1 o l. a year, which he 
 rented, and during his residence there, and while his set¬ 
 tlement continued in the parish to which he originally 
 belonged, he put his son, then 15 years of age, out ap¬ 
 prentice for 4 years to a person residing under a certificate 
 in the parish of B. While the son resided with his master, 
 the father acquired a settlement in H. by purchase for above 
 30 1. of the tenement which he before rented, and the 
 boy served his master the stipulated period. During all 
 which time he was clothed by his father, whom he occa¬ 
 sionally visited on holidays, and at other times with his 
 master’s leave, and at the expiration of his apprentice¬ 
 ship, being then aged 19, he returned to his father’s house, 
 staid there two days, and received new clothes horn him, 
 and then went to service. Tims requiring and receiving 
 assistance from his father, he must be considered as rein¬ 
 corporated on his return into his father’s family, and en¬ 
 titled to all the rights of one of its members, and there¬ 
 fore he followed the settlement which his father had 
 acquired in H. during the period of his son’s apprentice- 
 ship. (1) - 
 
 So where a son enlisted, at the age of sixteen, into the 
 same regiment of militia in which his father was serving 
 as a serjeant, and lived with him until the age of twenty- 
 three, the father receiving his pay, it was adjudged that 
 he followed the settlement acquired by the father during 
 this service in the militia and residence with him: for 
 living in the family, the parental controul was not alto¬ 
 gether destroyed, the guidance and direction of the child 
 to a certain extent was not inconsistent with the occasional 
 military situation in which he was. (2) 
 
 (1) Rex v Hardwick, 11 East, (z) Rex v. Woburn, 8 Term Rep. 
 
 578. A 79 - 
 
 But 
 
 Son enlisted. 
 
1 % 2 
 
 Separation 
 after majo- 
 rity. 
 
 \ 
 
 Voluntary. 
 
 Separation 
 as a mnor 
 conti rued 
 alterwirds. 
 
 Of the Settlement by Parentage. 
 
 Bat a child, once severed from his father’s family after 
 he becomes of age, cannot be again incorporated with 
 it, so as to follow any settlement which the parent ac¬ 
 quires subsequently. 
 
 « 
 
 A father removed into another parish, where he gained 
 a settlement, but the son, being above twenty-one, staid 
 behind, married, and lived with his wife and family apart 
 from his father.—The father’s new settlement was not 
 communicated to him. (i) 
 
 There was a marriage in this case; which has been 
 settled by subsequent determinations to emancipate a 
 child who continues to reside with the parent. 
 
 But the mere circumstance of a voluntary separation by 
 a child when of full age, who was thereby put out of the 
 parent’s controul, was held to amount to such an emanci¬ 
 pation as prevented the communication of a new parental 
 settlement. A daughter, twenty-two years old, having 
 had a bastard, left her father’s house, and hired herself to 
 a farmer in the same parish as a wet nurse. She lived 
 there eight weeks, for which she was paid eight shillings, 
 at the expiration of which time she returned to her father, 
 who had removed during that period to another parish, 
 and gained a settlement previous to her return by renting 
 a tenement at i 'll. a year. It was held, that having re¬ 
 moved from the father’s family at an age when, in esti¬ 
 mation of law, she wanted no further protection from the 
 father, she could not afterwards be deemed part of that 
 family, for the purpose of a derivative settlement. (2) 
 
 Upon the same principle also, if a child has separated 
 during its minority, and continues so alter it has attained 
 
 o J 7 
 
 the age of discretion, it is emancipated. 
 
 (1) Eastvvoodhey v. Westhot'dhey, (2) Rex v. Roach, 6 Term Rep. 
 
 1 Str. 438.5 also Bugden v. Amptliill, 247. 
 
 Eurr. S. C. 270. Rex v. Heath, 
 
 5 Term Rep. 583. 
 
 As 
 
Of Emancipation. 283 
 
 As wliere a son, nineteen years old, went into another 
 parish, married, and continued separate forty years pre¬ 
 vious to his father gaining a new settlement, without hav¬ 
 ing himself acquired one, he does not follow- this new 
 settlement of his father’s (1). So a son who enlisted for 
 a soldier at the age of nineteen, and served abroad, but 
 returned after four years to his father, and married, does 
 not follow his father’s settlement gained after enlisting (2). 
 
 Likewise the son of a Scotsman, who enlisted in the army 
 at nineteen years old, before the father had acquired any 
 settlement in England, and who did not return to Great 
 Britain until after his father’s death, was held not to be 
 settled in the parish where the father had gained one after 
 their separation; for he was emancipated some years be¬ 
 fore the father had acquired a settlement, and had put l 
 
 himself under the controul and government of others; 
 and it is immaterial whether or not he has no other set¬ 
 tlement for himself. (3) 
 
 In these cases, if the sons had quitted the army and Separation 
 returned home before twenty-one, they would have been durin^mi- 
 considered as part of the father’s family, and participated norit y- 
 in any subsequent settlement acquired by him, until their 
 complete emancipation (4). So when a father on his 
 wife’s death broke up housekeeping, and his daughter, 
 then 11 years old, was taken by her uncle, and continued 
 to live with him as one of the family (doing the work of 
 a servant, but without being hired as such) until she was 
 27 years old, the uncle finding her clothes and pocket 
 money. -Thus living away from her father before and 
 after she was 21, he having no house of his own, not 
 
 (1) St. Michael’s in Norwich v. St. (3) Rex *v. Stanwix, 5 Term Rep. 
 
 Matthew’s- in Ipswich. 670. 
 
 (2) Rex v. Walpole St. Peter’s, (4) Per Lawrence J. Rex-y.Roach, 
 
 Burr. S. C. 638, a Bott, 44. PI, 68. ante, 282. n. (2); and see Rex <v, Hard¬ 
 wick, ante, 281. (i),acc. 
 
 giving 
 
2$4 
 
 Separations 
 which do not 
 emancipate. 
 
 Of the Settlement by Parentage, 
 
 giving her any support, she ceased, “ after she became of 
 K age,” (I) to be part of her father’s family, as no future 
 settlement gained by him could be communicated to her: 
 and the court held that the father acquired a settlement by 
 a hiring and service for a year subsequent to his daughter’s 
 comino- of a^e (2), It does not seem settled by an express 
 decision, whether an emancipation, which is not com¬ 
 pleted but by the child’s not returning under the age of 
 twenty-one, is to refer to the period of its original sepa¬ 
 ration within the age of minority, or to that of its arrival 
 at the years of discretion. (3) 
 
 In the first supposition, the child will not follow any 
 settlement gained during the minority, if acquired subse¬ 
 quent to the separation; in the second, it will. 
 
 In Rex v. Stanwix, the father acquired his settlement 
 after the son came of age. In Rex v. Walpole St. Pe^ 
 ter’s, the time of gaining the settlement in Walpole 
 parish is not set forth. Rut in Rex v. Cowhoneyboume, 
 the court seemed to refer the point of the daughter’s 
 emancipation to the time when she became of age. 
 
 But every separation in fact does not amount to an 
 emancipation, although it occurs after the age of ma¬ 
 jority. Thus where it is for an occasional purpose, as 
 going out for a few weeks in harvest, the son continues 
 part of the family notwithstanding (4). So where a girl 
 having her hands burned off!, was incapable of work, and 
 her father being unable to maintain her, procured her to 
 be maintained by the parish; and she was placed in the 
 
 (1) Verba Le Blanc, J. io East, (4) Rex v. Sowerby, 2 East, 276. 
 
 jjg. See Rex v. Roach, ante, 282. n. (2). 
 
 (2) Rex v. Cowhoneyboume. Ibid. But the time for which the pauper was 
 
 (3) See the opinion of Lawrence, J. hired, or whether he was hired, did 
 Rex v. Woburn, 8 Term Rep. not appear in Rex v. So.werby. 
 
 429. and supra, n. (1), (2). 
 
Of Emancipation . 
 
 parish workhouse, where she continued until her father 
 gained a settlement in another parish after she came of 
 ao-e: this was held to be nothing like an emancipation, 
 but that she followed the new settlement afterwards ac¬ 
 quired by her father. (1) 
 
 For the reason of drawing a distinction between sepa¬ 
 ration before and after the child has attained the years 
 of maturity ceases, when imbecility of mind or body in¬ 
 duce the necessity of its continuing in a state of perpetual 
 pupilage. 
 
 The principle which prevents the child from following 
 any settlement acquired by its parents subsequent to 
 emancipation, must, when they have none, prevent it 
 from having recourse to that gained by the grandfather, 
 or other persons in the ascending line, subsequent to the 
 time when the father and mother, or other ancestors, 
 through whom they claim, have been emancipated, and 
 
 o * 
 
 ceased to form a part of the family of their immediate 
 parents. (2) 
 
 Where the parents have no settlement (3), or if it can¬ 
 not be ascertained, a legitimate child is settled in the 
 place of its birth (4) ; or if that is unknown, where it is 
 first found. (5) 
 
 (1) Rex-y Broadh&mbury, 2 Bott, 
 49 Pi. 72. See also Rex v. Long 
 Wittenham, where the daughter was 
 separated from her mother and family, 
 they having caught the small-pox, and 
 Lord Mansfield, C. J. “ The daugh¬ 
 ter was separated from her family by 
 the act of God, and it cannot be con¬ 
 sidered ah emancipation so as to pre¬ 
 vent her gaining a settlement.” But 
 the daughter seemed to have been 
 
 (a) Rex <v. Darlington, 4 Term 
 Rep. 797. 
 
 (3) Per Wilmot, J. Rex v. St. 
 Matthew’s Bethnal Green, Burr. 
 S. C. 42. 
 
 (4) Whitechapel v. Stepney, Carth. 
 433. See also Clavely v. Burton, 
 2 Bulst. 351. 
 
 (5) Per Holt, C. J. Banbury v. 
 Broughton, Comb. 364. Dalt. 168. 
 
 under age. 
 
2 8.6 
 
 Proofs of Settlement of 
 
 SECT. II. 
 
 Proofs necessary to support this Settlement 
 
 The place of a legitimate child’s birth is prima facie its 
 place of settlement, and proof thereof is sufficient to 
 throw the burthen on the other side of establishing a set¬ 
 tlement by parentage (i). But whichever side means to 
 rely upon the latter, must give in evidence. 
 
 1. The marriage. (2) 
 
 2. That the pauper is the issue of that marriage. 
 
 When the actual descent is proved, very slight evi¬ 
 dence will be sufficient in the first instance to establish the 
 legitimacy; for the law does not presume that the parents 
 have lived in a state of concubinage, criminal in them, 
 and productive of penal disability to their innocent 
 offspring. (3) 
 
 It lies on the other side to establish the bastardy by 
 that evidence which will be stated in treating of the set¬ 
 tlement of illegitimate children by birth. The evidence 
 therefore of the father and mother; an examined copy 
 of the parish register of the pauper’s birth or christening, 
 with evidence of his identity (4); or that his parents were 
 
 (1) Rex v. Whixley, 2 Const. 14. presumitur pro sententia et pro Iegi- 
 Pl. 34. Rex v. Heaton Norris, lb. timatione fiuerorum, iy Yin. Abr. 
 n. a. 6 Term Rep. 653. ; and see Voc. Presumption, a. 
 
 Rex -y. Woodford, ante, 260. n. (1). (4) Rex v. Creech, Burr. S. C.765. 
 
 (2) See ante, 260. et seq. 2 Bott, 16. PU 34. Ibid. 736. 
 
 (3) The legal maxim is Semper PI. 860. • . 
 
 considered 
 
 4 
 
2.87 
 
 Legitimate Children by Parentage or Birth. 
 
 considered as married persons; or the testimony of any 
 who knew his father and mother, and their being reputed 
 man and wife; or of their acknowledging the pauper as 
 their lawful child (i); and even that of the pauper him¬ 
 self to this effect is sufficient. 
 
 3. The parents’settlement. 
 
 r , - 
 
 The first settlement to be relied upon is that of the 
 father (2), and if he has done no act to gain one, it will 
 be necessary to resort to that of his grandfather or grand¬ 
 mother. If no settlement can be proved on the side of 
 the father, recourse is to be had in the same way to that 
 of the mother. In all these cases, the settlement last 
 gained before their child becomes emancipated is that of 
 the pauper. 
 
 - ■ ' ; *' * ■ ‘ ' • . ■ - 
 
 (1) P.ex <i>. Bucklebury, i Term {2) Ante, 275 - and Cripplegate v. 
 Rep. 164, 2 Bett, 26. PI. 48. St. Saviour’s. Fol. 265, 2 Butt, i6, 
 
 PJ-33. 1 
 
 TO I, \:Ij ■ U 
 
 . 
 
 ■ t . . 
 
 , . . , • 
 
 f 
 
 / 
 
( 283 ) 
 
 Bastards. 
 
 Mother re¬ 
 siding under 
 certificate. 
 
 I 
 
 \ 
 
 _ ' * * i 
 
 1 
 
 CHAPTER XIX. 
 
 1 ' 4 * 
 
 Of the Settlement of Illegitimate Children by Birth . 
 
 Sect. I. Of the Settlement . 
 
 illegitimate child is considered as the offspring of 
 no one(i), or, as it is sometimes termed, to cut 
 off all idea and hope of peculiar relationship, the child of 
 the people. There exists no privity of blood between it 
 and the reputed parents, through which it can lay claim 
 to their settlement: and it is settled in the place of its 
 birth, as we have seen that lawful children are whose pa¬ 
 rents have none. (2) 
 
 It is the same if the mother come into the parish under 
 the protection of a certificate (3); unless the parish cer¬ 
 tifying expressly describes the child therein, and under¬ 
 takes to provide for it. As where parish officers by their 
 certificate acknowledged A.C. spinster, and the child or 
 children which she now goeth with, to be their inhabi¬ 
 tants, and promised to provide for them; it is in that case 
 settled in the parish granting the certificate (4). But the 
 parish will not be bound to do so, where the undertaking 
 is in general terms to provide “ for the woman and her 
 child,” as that shall always be presumed to signify her le- 
 
 (1) 41 Ed. III. 19. i Roll. Abr. (3) Rex v Hilton, Burr. S. C. 187. 
 
 Bastard, (C). PI. i. (4) Rex v. Ipsley, Burr. S. C. 650, 
 
 (2) Whitechapel v. Stepney, ante, Quasre tamen ;and see the opinion of 
 232. n. 3. Rex <y. Spitalfields, 1 Ld. Lord Kenyon, C. J. Rex v, Mathon, 
 Raym. 567. Rex <v. St. Peter’s in post. 289. 
 
 Worcestershire, Burr. S. C. 25. 
 
 gitimate 
 
289 
 
 Of the Settlement of Illegitimate Children by Birth . 
 
 gitimate offspring (1). Even if a Certificate is granted 
 when the woman is unmarried and undertakes to provide 
 for the child she is then pregnant with, and all other 
 children that she may thereafter have, until she or they 
 acquire subsequent settlements; it does not extend to an 
 illegitimate child born eight years after the certificate is 
 granted, but it is settled where bom. (2) 
 
 Although this is the general rule respecting the settle¬ 
 ment of natural children, there are some exceptions which 
 exist at the common law, and others which are created 
 by statute. 
 
 / 
 
 The first exception by the common law, is, where a 
 woman with child of a bastard is removed out of one pa¬ 
 rish into another, through the fraud or collusion of its 
 officers. In this case the child, wheresoever it is born, is 
 settled in the parish from which the mother has been col- 
 lusively removed (3). But the removal of the woman, 
 must have been effected with a fraudulent purpose: for if 
 she should come accidentally into one parish, and in con¬ 
 sequence of the self-suggested persuasions of a private pa¬ 
 rishioner, go into some other, and be there delivered (4); 
 or if she should without fraud leave her own parish, with 
 the knowledge of the overseers, for the purpose of finding 
 the putative father of the child with which she is quick, 
 and be suddenly delivered in some other parish whilst en¬ 
 deavouring to reach her own, these form no exception to 
 the general rule, and the birth decides the settlement. (5) 
 
 The second exception is, where a child is bom after an 
 order has been made for the mother’s removal to some 
 
 (1) Rex rj. Wylce, Burr. S. C. 264. (4) Ante, 11.(3). 
 
 (2) Rex •v. Mathon, 7 Term Rep. (5) Rex v. Astley, Cald. 559. 
 
 362. 
 
 (3) Tewksbury v. Twining, Bulst. 
 
 349. Masters v. Child, 3. Salk, 66, 
 
 VOL. I. 
 
 Exceptions 
 by common 
 
 law. 
 
 1. Removal 
 
 by fraud. 
 
 2 . Pendin 
 an order 
 removal. 
 
 U 
 
 other 
 
 o 0=» 
 
29 o 
 
 _ Of the Settlement of 
 
 other parish. In this event, whether it is born in one of 
 the contending parishes (i), or in some intermediate one, 
 while the officers are in the act of removing, or using rea¬ 
 sonable diligence to remove the woman (2), it is settled in 
 the parish against which judgment is given, if the order 
 is contested (3); or in that to which the removal is made, 
 where it acquiesces without appeal. (4) 
 
 3. Mother The third exception is, where the child is born while 
 ,n aistod y- the mother is in actual custody of the law; as where she 
 is in the house of correction (5), or in the county gaol (6): 
 here it fellows the settlement of the mother ; or if that 
 cannot be known, it is to be provided for in the parish 
 where she was apprehended. (7) 
 
 A fourth exception seems to be, where the child is 
 born in a workhouse belonging to parishes united, under 
 9 Geo. I. c. 7. and which is situated in a third parish. 
 Here it shall be considered as settled in the parish to 
 which the mother belongs. (8) 
 
 « 
 
 Exceptions The exceptions enacted by statute are: 
 by statute. 
 
 j 3 Geo. nr. 1. By 13 Geo. III. c. 29. for regulating the Foundling 
 c ' 29 ' Hospital, no child received there shall thereby gain a set¬ 
 
 tlement in the parish where the hospital is situate. 
 
 fi) Rex^z. lcleford I Sess. Cas. 32. 
 Much Waltham’^. Peram,2 Salk. 474. 
 Boreham v. Waltham, Carth. 397 * 
 
 (2) Reg. n>. Icleford, ante, n. (1). 
 Reg. v. Jane Grey, post. n. (4). 
 
 (3) Westbury v, Coston, 2 Salk. 
 532. & ante, n. (1). 
 
 (4) Reg. v. Jane Grey. Sett. Rem. 
 41 - 
 
 (I5) Suckley v. Whithorn, 2 Bulst. 
 
 358. 32 Resol. Judges of assize 1633. 
 Dalt. 237. ante, 242. 
 
 (6) Elsitig v. The County of Here¬ 
 ford. 1 Sess. Ca. 99. 
 
 (7) See also Banbury •:». Broughton, 
 Comb. 364. 
 
 (8) Seethe opinion of Buller, J. 
 Rex v. St. Peter and St. Paul. Cald. 
 213. post. vol. ii. 
 
 2. Bv 
 
 v 
 
I 
 
 Illegitimate Children by Birth, 291 
 
 2. By 17 Geo. II. c. 5. s. 25. where a woman wander- *7 Geo. 11. 
 ing and begging, is delivered of a child in any parish or c * 5 ‘ 
 place to which she doth not belong, and thereby becometh 
 chargeable to the same, the churchwardens or overseers 
 may detain her till they can safely convey her to a justice 
 of the peace; and if she shall be detained and conveyed 
 to a justice as aforesaid, the child of which she is deliver¬ 
 ed, if a bastard, shall not be settled in the place where 
 so born, nor be sent thither bv a vagrant pass; but the 
 settlement of the woman shall be deemed the settlement 
 of the child. 
 
 3 * By 13 Geo. III. c. 82. s. 5. no bastard child, born 13 Geo. in. 
 in a lying-in hospital, shall be legally settled in, or en- c * 
 titled to relief as a parishioner from the parish wherein 
 the hospital is situated; but every such child shall follow 
 the mother s settlement, and shall immediately gain a set¬ 
 tlement in the parish or parishes respectively, where his, 
 her, or their mothers were last legally settled. 
 
 4 * By 20 Geo.III. c. 3d. bastard children born mthe 20 Geo. III. 
 house of industry of any hundred or other district incor- c< 36 ' 
 porated by act of parliament for the relief and employ¬ 
 ment oi me pool, shall be deemed to belong to the parish 
 
 or place where the mother of such bastard child was le¬ 
 gally settled. 
 
 5 * By 33 Geo. III. c. 54. s. 25. for t(ie encourage- 33 Geo. nr. 
 ment and relief of friendly societies, it is ena&ed, that c ’ 54 ' 
 every child which shall be born a bastard in any parish, 
 township, or place, during the mother’s residence therein 
 under the authority of this act, shall have, and be deemed 
 to have the same settlement which the mother has, or is 
 entitled to at the time of the birth of such child. 
 
 1 
 
 6 . 35 Geo. III. c. 101. s .6. if an order of removal 35 Geo. nr. 
 
 has been obtained for the purpose of removing an unmar- c * 101 ’ 
 
 u 2 • xied 
 
 I 
 
292 ' Proofs of Settlement of 
 
 ried woman who is with child, and it shall be suspended 
 on account of the sickness or other infirmity of such per¬ 
 son, and during such suspension the said woman shall be 
 delivered of any child which by the law of this kingdom 
 shall be a bastard; every such child shall be deemed and 
 taken to be settled in the same parish, township, or place 
 in which was the legal settlement of the mother at the 
 time of her delivery. 
 
 SECT. II. 
 
 Of the Proofs . 
 
 , The only proof required to establish this kind of settle¬ 
 
 ment is, that the pauper was actually born within the pa¬ 
 rish or township. This may be effected either by the 
 testimony of the parents, relations, or any other person 
 acquainted with the fact. 
 
 Hearsay in- It has been the practice of many sessions, where the 
 u , 0 ‘ parents were proved dead, to admit evidence of their de¬ 
 claration as to the place of the child’s birth in proof of 
 the settlement. This rule seems to have been adopted 
 irom a supposed analogy to questions respecting the time 
 of a child’s birth, where such declarations are evi¬ 
 dence (i), and front the obvious difficulty of establishing 
 the fact in most cases by any other means. (2) 
 
 But the court of king’s bench have decided, after 
 taking time to consider the point, that such declarations 
 cannot be received in evidence. For the controversy 
 is not as in a case of pedigree from what parents the 
 child has derived its birth; but in what place an un- 
 
 (1) See post. 298. ofwhichitis not reasonable to pre- 
 
 {%) Hearsay is good evidence to sums I have better evidence. Bull, 
 prove who is my grandfather, where L. N. P. 294. cites Grimwade and 
 he married, what children he had, &c. Stephens, Kent 1697. 
 
 15 
 
 disputed 
 

 Illegitimate Children by Birth . 
 
 disputed birth derived from known and acknowledged pa¬ 
 rents has happened. It involves no question but of loca¬ 
 lity, which is to be proved by the general rules of evi¬ 
 dence, according to the ordinary course of common law. 
 It is not a case of pedigree, and the rules of hearsay evi¬ 
 dence do not apply. (i) 
 
 But the parish register of the birth or christening, with 
 proof of the pauper’s identity, such as that the reputed 
 father and mother passed by the Christian and sur-names 
 given to the parents in the register, seems prima facie 
 'evidence that he was born in the parish. (2) 
 
 Although birth is prima facie evidence of a settlement, 
 without any reference to the legitimacy of the pauper, vet 
 questions on the latter point must frequently arise between 
 contending parishes, for the purpose either of getting rid 
 of this birth settlement by proving one by parentage ; or 
 vice versa , of establishing conclusively that which arises 
 from birth, by destroying the presumption that a prefer¬ 
 able one is derived from the parents. 
 
 (1) The material parts of the case 
 are as follows: “ Upon appeal against 
 an order removing W. H. from Cran- 
 brook to Eritli, the Respondents, in 
 support of their case, examined the 
 pauper W. H. who stated, that about 
 20 years ago, being then about 14 
 years old, he remembered being at 
 Erith with his father from June to the 
 Michaelmas following. That they 
 lived in a barn, having no fixed resi¬ 
 dence, but travelling the country from 
 place to place; that he remembered 
 being at other places before their so¬ 
 journing at Erith ; that his father, who 
 was n©iv dead, had told him, that he 
 was born a bastard at Erith, and had 
 
 pointed to that place as they were 
 passing, telling him that that was the 
 place of his [the pauper’s] birth. The 
 pauper further stated, that he had 
 done no act to gain a settlement. The 
 court of Quarter Sessions being of opi¬ 
 nion that there was sufficient evidence 
 of the pauper’s birth in E.- confirmed 
 the order removing him thither, but 
 the court of K. B. being of a contrary 
 opinion, quashed both orders. Rex <&•. 
 Erith, Trin. 47 Geo. III. 8 East,530. 
 
 (2) Rex v. Creech St. Michael, 
 Burr. S. C. 765, especially if the pre¬ 
 sumption is strengthened by a corres¬ 
 pondence between the date and the 
 pauper’s age. 
 
 u 3 
 
 By 
 
294 
 
 Proof of 
 illegiti¬ 
 macy. 
 
 9 
 
 Proofs of Settlement of 
 
 By the law of the land, no man can be a bastard who 
 is born after marriage, unless for special matter (i). If 
 therefore a man marries a woman that is with child, it 
 raises a presumption that the child is his own ; for by 
 marrying one whom he knows to be in that situation, he 
 may be considered as acknowledging, by a most solemn 
 act, that the child is his (2), and it will be legitimate. 
 
 But this presumption of legitimacy may be rebutted, as 
 will be seen in considering the facts upon which illegi¬ 
 timacy depends, which are to be classed as follows : 
 
 1. where i. Where either no marriage exists, or only an infor- 
 no marriage. ma j one? before the child is bom. (3) 
 
 2. when 2. Where a marriage subsists, and the husband is alive 
 
 the husband *^J zen it is 1 ) 0711 . 
 is alive. 
 
 3. When 
 dead. 
 
 Access pre¬ 
 sumed. 
 
 3. Where he dies before it is born . 
 
 Legitimacy, in the second case, depends chiefly upon 
 the fact of the husband’s access to his wife; for where 
 that has taken place, the issue will be legitimate, although 
 the woman is proved to have been ever so unfaithful to 
 the nuptial bed (4). Access shall be presumed, even in 
 cases where there has been a voluntary separation be¬ 
 tween husband and wife; and it requires strong and al¬ 
 most irrefragable evidence to shew that it has not taken 
 place (5); for the general presumption quod pater est quern 
 nupticc demonstrant shall prevail, “ except a case of plain 
 natural impossibility is shewn.” (6) 
 
 The evidence by which illegitimacy is to be proved in 
 this case is reducible under four heads: 
 
 (1) 1 Roll. Abr. 3,58. Bastard, B. (4) Rex v. Brown, 2 Stra. 811. 
 
 (2) Per Lawrence, J. Rex. v. (5) 1 Black. Com. 457. 
 
 Luffe, 8 East, 210. (6) Per Lord Ellenbourgh, C. J. 
 
 (3) Ante, p. 261, Sec. Rex v. Luffe, 8 East, 207. 
 
 11 
 
 First 
 
Illegitimate Children by Birth . 
 
 First and anciently, almost the only proof of non-access, 
 was the child’s beiim conceived and born while the hus- 
 
 O 
 
 band continued beyond the four seas, (i) 
 
 Secondly, where there is a divorce a mensd et thoro: 
 for obedience to the ecclesiastical sentence shall be pre¬ 
 sumed. (2) 
 
 Br ^ 1 
 
 The third arises from the explosion of the old opinion, 
 that if the husband is within the four seas the child is legi¬ 
 timate. Wherever therefore it is a manifest physical 
 impossibility that the husband can have procreated the 
 child, it shall be deemed a bastard. Thus if it can be 
 proved by clear evidence , that the husband has not had 
 access during the entire period of gestation (3), ,the child 
 isabastard. Neither is it necessary in this case, (at least 
 where the parties have been long dead,) to establish non- 
 access by witnesses who can prove him constantly resident 
 away from his wife. Prpof that the husband left Nor¬ 
 wich, and went to reside in London, that his wife re¬ 
 mained behind, and lived with another man as his wife 
 for years, during which time the child in question was 
 born; that this child always went by the adulterer’s name, 
 and was reputed illegitimate in the family; has been held 
 sufficient evidence cf illegitimacy, though it did not 
 clearly appear where the real husband had been from the 
 time of conception to that of delivery (4). So also if the 
 husband be proved beyond seas until within a fortnight of 
 
 (1) Rex-y. Alberton, I. Ld. Raym. St. Margaret’s Westminster, 1 Salk. 
 
 395. a Salk. 483. According to this 123. 1 Const. 452. PI. IZ3. 
 
 case, the husband must have been ab- (3) Rex •u. St. Bride’s, 1 Str. 51. 
 sent, not only at the time of concep- Pendrel v. Pendrel, 2 Str. 925. Rex 
 tion and birth, but during the entire <v. Bedall, 2 Str. 1073. Rex Maid- 
 period cf gestation.—But this doctrine stone, 12 East, 550. where the husband 
 is contradicted by several cases, and ex- was abroad for two years previous to 
 pressly overruled in Rex v. Luffe, the child’s birth, and the mother con- 
 ante, n. 294. (2) tinued in England. 
 
 (2) 1 Black. Com. 457. Bull. N. (4) Thompson v. Saul, 4 Term 
 P. 112. See also Rex v. Kempson, Rep. 356. 
 
 1 Bott, 378. PI. 443 - St - George v. 
 
 u 4 hi* 
 
 293 
 
 1. When bs- 
 yond four 
 seas. 
 
 2 . Divorce. 
 
 3. Direct 
 evidence. 
 
Proofs of Settlement of 
 
 his wife’s delivery, the child is a bastard ; absence during 
 the entire period of pregnancy being immaterial, where 
 the circumstances of the case demonstrate a natural im¬ 
 possibility that the husband can be the father. (i) 
 
 Lastly, upon the same principle of physical impossibi¬ 
 lity it has been long settled, that if the husband be only 
 eight years old (2}; or if a man who is infirm and bed¬ 
 ridden marries a pregnant woman in his chamber, and 
 she is delivered twelve weeks after; the issue is bas¬ 
 tard (3). But the evidence must go to an impossibility; 
 for improbability, arising from a bad habit of body, is 
 insufficient. (4) 
 
 The third situation which may give rise to the ques¬ 
 tion of illegitimacy is, where there has been a marriage, 
 and the husband dies before the issue is bom . 
 
 If the child comes into the wtirld within the usual pe¬ 
 riod of gestation, i. e. forty weeks, it is in general to be 
 
 (1) P„ev v. Luffe, 8 East, 193. 
 Rex <v. Maidstone, 12 East, 530. 
 
 (a) So if the husband he but 9 years 
 old, but'Rolle adds a quaere, 1 Roll, 
 Abr. 359. Bastard, PI. 17. But 
 “ there is a case in the year-book, 1 
 H. 6. 3. b. which goes the length of 
 deciding the issue to be a bastard, 
 where the husband was within the age 
 of 14.” Per Lord Ellenborough,C. J. 
 Rex v. Luffe, ante, 294. n. (6) 
 
 (3) Foxcraft’s case, 1 Roll. Abr. 
 359. 1 Bolt, 445. PI.552. In this case 
 it must be presumed to have been shown 
 that he had no previous access during 
 the pregnancy. See Mr. East’s note, 
 Rex v. Luffe, 8 East, 200. It seems 
 questionable, however, whether this 
 case did not turn upon the irregularity 
 of the marriage. Rolle cites many 
 subsequent determinations in which 
 
 the child has been held legitimate un¬ 
 der even more extravagant circum¬ 
 stances. “ A woman being with child 
 by one, is married to another, and af¬ 
 terwards issue is born, it is legitimate 
 though born within 7 days after the 
 marriage.” 1 Roll. 358. (B). PI. 3. 
 If a married woman goes into another 
 country and marries a second husband, 
 has issue by him, the first husband be¬ 
 ing within the seas, the issue is legiti¬ 
 mate, lb. pi. 6. But this law is now 
 exploded. 
 
 (4) Lomax v. Holmden, 2 Str. 
 940. 1 Bott, 447. pi. 560. There 
 
 must be a physical impossibility of the 
 husband’s being the father, for upon 
 the ground of improbability, however 
 strong, I should not venture to proceed. 
 Per Lord Ellenborough, C. J. Rex v. 
 Luffe, 8 East, 207. 
 
 deemed 
 
Illegitimate Children by Birth. 297 
 
 / * 
 
 deemed legitimate; if beyond, a bastard (1). But in the 
 opinion of medical persons, this period maybe accelerated 
 or retarded by accidental causes; and upon their testi¬ 
 mony, judging from the particular facts of the case, a 
 child was held legitimate, though born forty weeks and 
 nine days after the husband’s decease. (2) 
 
 If a man die, and his widow soon after marry again, 
 
 •and a child is born within such time as renders it dubious, 
 from the course of nature, to which husband it belongs; 
 the issue is said to be more than ordinarily legitimate, and 
 may, upon arriving at the years of discretion, choose 
 which of the fathers it pleases. (3 ) 
 
 As to the witnesses by whom the fact of illegitimacy proof, by 
 may be proved, not only all other persons, but the father what Wlt_ 
 
 nesses* 
 
 or mother may be called, for they are not directly in¬ 
 terested in the question of their child’s settlement. 
 
 They may therefore prove, 1. The fact or time of mar- Parents’ 
 riage. (4) - ev ' dence - 
 
 2. Its formality or informality. (5) 
 
 3. Whether a child is born subsequent or prior to a 
 marriage had between them. (6) 
 
 (1) Rad well’s case, Co. Litt. 124, b. 
 Lord Hale’s MSS. Ibid. It seems 
 also to have been found, that the hus¬ 
 band had no access for the month be¬ 
 fore his death, having languished of a 
 fever during that time. 1 Roll Abr. 
 336. Per Lord Ellenborough, C. J. 
 Rex u.LufFe, ante, 296. r<. (4) 
 
 (a) Alsop v. Bow tr ell, Cro. 
 Jac. 541. 
 
 (3) 1 Bott, 444. PI. 550. 21 Ed. III. 
 PI. 39. 
 
 (4) Rex v. St. Peter’s, Burr, S. C. 
 25. Stapylton v. Stapylton, Cas. 
 temp. Hard.277. May v. May, Bull, 
 N. P. 112. Sacheverell v. Sacheverell, 
 lb. 241. 287. I.ord Valentia’s case, 
 Cowp. 593. 
 
 (5) Standen n. Standen, Peake’s 
 Ni. Pri. Ca, 32. Rex v. Bramley, 
 6 Term Rep. 330. And see Wilkin¬ 
 son v. Payne, 4 Term Rep. 468. ante, 
 272. 
 
 (6) Stevens v. Moss, Cowp. 591. 
 
 , 4. But 
 
298 
 
 / 
 
 Proofs of Settlement^ S>c. 
 
 4. But where a child appears to have been born in 
 wedlock) the evidence of the parents, especially of the 
 mother who, is the offending party, is inadmissible to 
 prove the non-access of the husband, and bastardize the 
 issue (1). And it makes no difference that the father is 
 dead at the time when the wife is examined, for the rule 
 is grounded upon the general principle of public po¬ 
 licy, affecting the children born during marriage as well 
 as the parties themselvfes. (2) 
 
 5. Yet where the child is so born, the mother is an 
 admissible witness to prove the fact of her adultery, be¬ 
 cause from the nature of the transaction it is usually car¬ 
 ried on with such secrecy, as to admit of no other evi¬ 
 dence. (3) 
 
 6. Proof of the parent’s declaration on oath or other¬ 
 wise is evidence after their decease of the fact of mar¬ 
 riage and the time of birth. (4) 
 
 7. Where a divorce can be proved by parol, and the 
 production of the sentence of a court is unnecessary; as 
 where it is done abroad by an unwritten judgment, and 
 according to the forms of some foreign law, the parties 
 are evidence to prove the fact. (5) 
 
 (1) Per Lord Mansfield, Ste¬ 
 vens v. Moss, Cowp. 593. Rex v. 
 Reading, infra, (3). Rex v. Luffe, 
 ante, 296. n. (4), and decided, Rex v. 
 Kea, 11 East, 13a. But see Clark v. 
 Wright, 1 Bott, 447. PI. 558. Rex<z>. 
 Eedall, infra, n. (3). But the wife 
 being examined to prove non-access 
 does not vitiate an order of bastardy if 
 the fact be proved by other witnesses. 
 Pv«x v. Bedall, Rex v. LufFe, ante. 
 
 (a) Rex v. Kea, 11 East, 132. 
 
 (3) Rex <v. Reading, Cas. temp. 
 
 Hard. 79. 1 Bott, 448. PI. 562. 
 
 Rex v. Bedall, lb. 453. PI. 564. 
 2 Str. 1076. Stevens v. Moss, ante, 
 297. n. (6). Rex <v. Luffe, 8 East, 193. 
 
 (4) Anon. 12 Vin.347. [T. b.91.] 
 Rex <y. Bramley, ante, 297. n. (5). 
 
 (5) Ganer v. Lady Lanesborough, 
 Peake’s Ni. Pri. Ca. 18. ante, 273. 
 
 / 
 
I 
 
 ( 299 ) 
 
 CHAPTER XX. 
 
 Of Settlement by Hiring and Service . 
 
 SECT. I. 
 
 Division of the Subject, 
 
 *~pHE first statute which required a further qualification 3w.ni. 
 
 to confer a settlement beyond mere residence as a c - H\ con ' 
 
 _ T TTT . struction of. 
 
 servant for the space or forty days, was 3 W. ill. chap. 11. 
 sect. 6 . It enacts, that if any unmarried person, not 
 having child or children , shall be lawfully hired into any 
 parish or town for one year, such service shall be adjudged 
 and deemed a good settlement therein. 
 
 This section describes, first, the persons who shall be 
 capable of gaining a settlement by hiring; it next re¬ 
 quires that the hiring shall be for a year; and lastly, that 
 it shall be in a “parish or township.” 
 
 But the words “ such service,” having no regular ante¬ 
 cedent, it was difficult to ascertain for what period the K 
 service was intended to continue. It might, and possibly 
 with little violence, have been construed to signify a ser¬ 
 vice commensurate w r ith, and under that yearly hiring, 
 which is required in the very same clause, since there was 
 nothing else in the sentence to which these words could 
 refer. But it was held to make no further alteration in the 
 law of settlements, than requiring a bona fide contract for 
 a year’s service, which the parties w r ere left to enforce at 
 their discretion. A settlement therefore was gained by 
 entering into this yearly agreement as a servant joined 
 with residence as such for forty days. 
 
 Reference 
 
V 
 
 3^0 Of Settlement by Hiring and Service. 
 
 Reference to the remaining ways of acquiring set¬ 
 tlements, in which nothing is necessary beyond resi¬ 
 dence for forty days in a particular capacity, seems to 
 have given rise to this construction. The case of 
 apprentices bore a strong analogy to that of servants. 
 Nothing further was required to gain a settlement by 
 apprenticeship, than a contract by indenture, and resi¬ 
 dence under it during forty days. A similar contract 
 for a year’s service, with a like performance of service, 
 may from an observance of the same rule have been 
 deemed equally sufficient to confer one in the case of hiring 
 and service. 
 
 • • 
 
 This interpretation of the statute produced great incon¬ 
 venience. Fraudulent hirings to persons unable to main¬ 
 tain or employ a servant were entered into, that paupers 
 might be retained in particular parishes. The actual ser¬ 
 vice, which was the substantial consideration supposed to 
 be paid to the parish for the burthens of a settlement, re¬ 
 maned unperformed. If a servant was discharged by 
 collusion, or through misconduct, after the lapse of his 
 forty days, he was thrown a more speedy and permanent 
 incumbrance upon the parish than where the service was 
 honestly performed. 
 
 8 & 9W.m. To remove these inconveniences, a 'clause was intro- 
 - 3 °- duced in 8 & 9 W. III. c. 30. which provides, that no 
 person so hired as aforesaid, shall be judged or deemed 
 toTave a good settlement in any such parish, or township, 
 
 44 unless suclfperson shall continue ffikT abide in the same 
 
 44 service For the space of one whole year.” 
 
 ** - - ■■■ 1 
 
 Distribution Of these statutes, when taken separately, the first re¬ 
 ef subject. g U l a tes three things, namely, the description of persons 
 by whom a settlement may be gained; the lawful hiring 
 for a year; and the place into which the servant is to be 
 hired. The second prescribes the service, and the abiding 
 
 and 
 
Of Settlement by Hiring and Service. ^ 0I 
 
 and continuance therein for die space of an entire year. 
 
 When considered together as part of the same code, 
 a further question arises upon them, of how far the ser¬ 
 vice made necessary by the one, need be performed un¬ 
 der the contract of hiring required by the other ? 
 
 This branch of settlement lav/ may be considered there¬ 
 fore under the four following general heads: 
 
 1. What persons are capable of gaining a settlement 
 by hiring and service. 
 
 2. The contract of hiring. 
 
 3. The year’s service. 
 
 4. The residence by, and place in which the settlement 
 is gained. 
 
 A ' ffl 
 
 4 
 
 SECT. II. 
 
 What Persons are capable of acquiring a Settlement by 
 
 Hiring and Serviee . 
 
 The words of 3 W. III. c. n. are, that “ if anyun- unmarried. 
 “ married person, not having child or children, shall be 
 <fi lawfully hired,” &c. 
 
 It has been held, that the period at which the 
 statute requires the party to be unmarried, is the 
 time when the contract * is made. Therefore, if a ser¬ 
 vant marries during service (1), or even after the hiring, 
 
 1 Kt KffT* I ‘ / ‘ I i 
 
 (>) Farringdon i\ Witty, Salk. 527. Rex v. Hedsor, Cald. 51. Rex x;. 
 
 Rex v. Clent, Fol. 148. Rex v. Sut- Nympsfield, Cald. 107. Rex v. Great 
 ton, 2 Sess. Cass. 133. Rex k. Han- Bookham, z Const, 292. n. (a), 
 bury, Burr. S. C. 322. See also 
 
 but 
 
I 
 
 302 Of Settlement by Hiring and Service . 
 
 but before his year begins (1), it will not prevent his set¬ 
 tlement. Neither does it make any difference, that both 
 parties think the servant married at the time of hiring; 
 as where the husband being abroad, died before the 
 wife entered upon her second year’s service, and she 
 was unacquainted with the fact (2); or although they know 
 that the servant is to be married before his service com¬ 
 mences. (3) 
 
 The servant’s being married at the time of making the 
 
 O O 
 
 agreement is likewise immaterial, if he be single, when it 
 becomes absolute and complete. As where a married 
 man was hired conditionally on the 16th, to serve for a 
 year from the 24th of the month, if the intended master 
 should approve the terms; and his wife died in the inter¬ 
 mediate time: he was held to gain a settlement by a 
 year’s service; for the master had a power to dissent 
 until the 24th, when the servant was unmarried, and the 
 hiring was considered as taking place on that day. (4) 
 
 Without The second qualification required by the statute is, that 
 children. the servant should not have any child or children at the 
 time of hiring. This is adjudged to mean children, who, 
 by following their parent’s settlement, might become 
 chargeable to that parish in Y'hich one may be acquired 
 under the new servitude. So that, if legitimate chil¬ 
 dren are emancipated at the time from which the pa¬ 
 rent engages to serve, he may gain a settlement (5). But 
 they must be emancipated at the commencement of his 
 contract for that particular year’s service under which 
 
 (1) Rex <v. Allendale, 3 Term Rep. 455. That the service for the last 40 
 
 382. Rex v. Stannington, 3 Term days must be performed under a con- 
 Rep. 385. tract of hiring entered into when the 
 
 (2) Rex <1/. Hensingham, Cald. 206. pauper is unmarried, see post. sect. 4. 
 
 (3) Rex n>. Allendale, supra, n. (1). (5) Anthony v. Cardigan, Fort. 
 
 (4) Rex v. Banknewton, Burr.S.C. 300. Fol. 131. S. C. 
 
 , the 
 
 / 
 
Oj the Contract of Hiring, 
 
 3°3 
 
 the settlement is sought to be obtained (i). The child’s 
 entering into a contract by which, if completed, he may 
 gain a settlement, and thereby become emancipated, does 
 not qualify the parent for obtaining one. Thus, where 
 ». father having a son, who hod not acquired a settlement, 
 hired himself for a year, and the son was also hired for 
 the same period, on the same day, and both served their 
 time; the father gains no settlement, as not being a per¬ 
 son “ not having a child” within the meaning of the act; 
 foi the son s conti act of service might not have been com¬ 
 pleted, in which event lie could not have gained a settle¬ 
 ment, and therefore at the time when the father entered 
 into the 1 elation oi servant, the son constituted a part of 
 his family. (2) 
 
 SECT III. 
 
 Of the Contract of Hiring. 
 
 Many parts of the agreement of hiring, which are of Panics ,o 
 most importance to the master and servant, have but small the contract, 
 relation to the question of settlement. 
 
 All contracts are made between at least two contracting 
 parties, which implies that they should not only be of 
 sufficient understanding to contract, but that the person 
 engaging as a servant should be disencumbered from any 
 other relation which renders the engagement unlawful. 
 Upon this last principle it has been held, that neither a 
 deserter from the king’s service, nor an apprentice, can 
 awfully hire himself so as to acquire a settlement during 
 the continuance of those several relations to the crown or 
 
 a master. (3) 
 
 (1) See Rex v, Cowhoneyb 
 East, 88. 
 
 ouie, 10 (2) Rex v. New Forest, 5 Term 
 
 Rep. 478. 
 
 ( 3 ) Rex v. Norton, 9 East, 206. 
 
 It 
 
3°4 Of Settlement by Hiring and Service. 
 
 • 
 
 It is immaterial whether the agreement be to serve one 
 or more masters (i); or is made by a third person, if 
 subsequently ratified by the parties (2). Neither is it 
 necessary that they should be of full age, if the engagement 
 is entered into with the parent’s consent, and the pauper 
 adopts it afterwards (3); but it must be so ratified: and 
 therefore parish officers can neither hire out adult (4), 
 nor infant paupers (5), unless such pauper afterwards 
 adopts the contract (6). It is of no importance whether 
 the master has a settlement in the parish; for the servant 
 does not derive his settlement from the master, but from 
 the service. (7) 
 
 The degree of relationship or consanguinity also makes 
 no distinction, unless, as is the case of husband and 
 wife, it is inconsistent with the formation of the contract 
 itself. The agreement by a daughter, who was emanci¬ 
 pated, to perform the offices of a servant to her father 
 for a certain reward, is equally within the statute, as where 
 the parties are strangers to each other in blood and con¬ 
 nection. (8) 
 
 Wages and 
 service. 
 
 The nature of the service is likewise immaterial. It 
 may be extended to all soils of \vork, or confined to a 
 particular sort (9). The servant may live out of the house 
 during the entire of his service (10); or for part of the 
 time in, and part out (11); it is still an hiring within the 
 
 » 
 
 (1) Rex v. Eldersley, 2 Bott. 274. 
 P3.317. Rex v. Elstack. Cald. 489. 
 post. 329. 
 
 (a) Per Lord Kenyon, Rex v. St. 
 Matthew’s Ipswich, 3 Term Rep. 449. 
 Rex v. Rushall, post. 317. (2). 
 
 (3)' See Rex v. Wintersett, Cald. 
 298. Rex v. Macclesfield, Burr. S.C, 
 458. Rex nj. Wincaunton, 2 Const.195. 
 PI. 255. for an infant’s contract is not 
 absolutely void, but only voidable at his 
 own election, lb. and Holt v. Ward, 
 2 Str. 937. Per Lord Ellenborough, 
 C. J. Rex v. Shinfield, 14East, 545. 
 
 (4) Rex <v. Rickinghall Inferior, 
 7 East, 373. 
 
 (5) Rex <v. Stowmarket, 9East, 211. 
 
 (6) Rex v. Norton, 9 East, 206. 
 
 (7) Chesham v. Missenden. Ful. 
 
 142* 
 
 (8) Supra, n. (7); and Rex <a. 
 Chertsey, 2 Term Rep. 37. 
 
 (9) Rex v. St. Agnes, Burr. S. C. 
 671. 
 
 (10) Rex v. King’s Norton, Burr. 
 S. C. 152. 
 
 (11) Rex v. Sutton, 1 East, 656. 
 
 statute, 
 
Of the Contract of Hiring* 
 
 Statute, provided lie remains under his master’s controul 
 during the whole time of the contract. Equally unim¬ 
 portant is the nature of the wages to be received; they 
 may be in money, or in kind, or instruction (i), or in 
 part of the servant’s earnings (2), or in victuals and 
 clothes (3); or either, or even none of these (4), pro¬ 
 vided an actual contract exists. In the same manner 
 they may be payable either by the week (5), the year, 
 the piece, or the gross (6); and any alteration in these 
 particulars during the year, which does not put an end 
 to the contract, is also immaterial. These circumstances 
 will often prove important clues towards ascertaining the 
 time for which the hiring is made, or the degree of con¬ 
 troul which it gives the master over his servant, where 
 they do not expressly appear from the terms of the con¬ 
 tract itself; but where these are ascertained, the former 
 make no variation in the law of settlement. 
 
 3 °S 
 
 following ai 0 the principal rules to be observed Requisites 
 relative to the contract of hiring in cases of settlement: j,f a h -° ntract 
 1. theie must be a contract; 2. it must be a contract 
 for servitude, and intended only as such; 3. it must be an 
 entire contract for at least a complete year’s prospective 
 service; 4. it must contain no special exceptiorf^SxSSp?- 
 
 ing the servant from his master’s controul during its con¬ 
 tinuance. ° 
 
 The 3 W. & M. c. 11. s. 6. requires that the person z. Must be 
 shall be lawfully hired; it is necessary therefore that an a contract ’ 
 agreement, imposing the reciprocal obligation of master 
 and servant, should subsist between the parties (7). But 
 
 1 
 
 (1) Hex v. Httcham, Burr. S.C. (5) Rex */. Winchcombe, Doug! 
 
 39 i. 
 
 (a) Rex v. Little Bolton, Gald. 367, (6) Rex v. Birmingham, Doug!. 
 
 ( 3 ) Rex v. Woibeld, post. 324. (3). 333. 
 
 Wandsworth v. Putney, post; 3i 7 .(*). (j) Gregory Stoke Pitrmmter, 
 
 (4) R «^ B ath Easton, post 3J4. jB„tt, 179. PI. *33.1 and see the 
 Per Lord Kenyon, C. J. Rex v. St. cases cited infra. 
 
 Matthew’s Ipswich, 3 Term Rep, 449. 
 
 VOL. I. x 
 
 it 
 
Of Settlement by Hiring and Service. 
 
 it is sufficient if the contract is made in an extraparochial 
 place, although the words of the act refer to an hiring 
 H into a parish or township.” (i) 
 
 Such agreement may be either express or implied. 
 
 An express agreement may be in writing^), or by word 
 of mouth; it requires in neither case any technical form 
 of expression to render it valid. Like all other contracts, 
 it is to be interpreted according to its general purport, so 
 that if the intention to bargain for a year’s service be 
 clear, no matter in what terms it is expressed. Thus an 
 hiring for eleven months, for 4I. 1 os., it being agreed at 
 the time between the servant and master, that the servant 
 should give a month’s service in beyond the eleven months, 
 is an hiring for a year; for it is in substance an agree- 
 ment to serve for twelve months. The variation in ex¬ 
 pression is of no significance, and cannot avail to prevent 
 the gaining a settlement. (3) 
 
 s • ‘ « , 
 
 If the original terms areequivocal theymay be explained 
 by the subsequent conduct of the parties. On the 17th 
 2r the pauper was hired to serve “ for the year, 
 at 9s. 6d. per week.” He served under that hiring and 
 ^received his wages weekly until the 13th of October fol¬ 
 lowing, when he had a conversation with his master and 
 agreed to serve him for another year at 1 os. per week. 
 On the 20th October he received 10s., concerning which 
 no explanation took place; but the pauper said he re¬ 
 ceived it under the new hiring. He continued in the 
 service all that year, and seven weeks after; he was mar¬ 
 ried eight weeks after the first hiring. The court thought 
 
 (1) Rex v. St. Peter’s in Oxford, 433.; and see the opinion of Lord 
 rel. 193* pest. Kenyon, Rex *v, Macclesfield, 3 Term 
 
 (a) Pawlet-i;. Burnham, aBott, 307. Rep. 76. and of Buller, J. Rex »■. 
 
 347 * Mure ley, 1 Term Rep. 694, 
 
 (3) Rex v. Milwich, Burr. S. C. 
 
 that 
 
Of the Contract of Hiring, 
 
 that strictly speaking it was a question of fact whether 
 the first contract was intended to be for the space of a 
 year, or only to the end of the current year; but how¬ 
 ever equivocal the expression might have been at first, 
 when the master and servant on the 13th of October in 
 the following year spoke of a contract for another year, 
 
 that shewed that they had originally intended, a yearly 
 hiring. (1) 
 
 Also where an hiring is stated, the court will presume 
 it to be regular unless the contrary appears. (2) 
 
 An implied agreement of hiring is a contract which ' 
 the law infers to have taken place between the parties, 
 where an express one does not appear. The mere exer¬ 
 cise of controul, and the performance of service between 
 persons otherwise independent, is sufficient to support 
 this inference, since* it is only from an agreement either 
 expressly entered into, or tacitly understood, that the one 
 
 can derive his right to command, or the other be induced 
 to obey. 
 
 3 ° 7 
 
 2 . Implied 
 contracts. * 
 
 Thus the mere acts of service, either in husban^y.^ V r .. Mrrr . of 
 or as a menial servant (4), or as an ostler (5), aresuffi- impifeThir- 
 cient to warrant the inference of a contract of hiring. So ,n£S, 
 where an express contract has existed, and expired,°if the ‘ 
 servant continues the succeeding year, with his master, 
 without coming to any other agreement, the law implies* 
 from the fact of service, an agreement to serve for that 
 year on the same terms (6); and that although the pre- 
 
 (1) Rex v. Overnorton, 15 East, 
 347 - Rex t\ Seaton and Beer, Cald. 
 440. S.P. and post. 328. 
 
 (2) In Rex v. Weyhill, Burr. S. C. 
 
 185. 
 
 ( 3 ) Rex t/. Lyth, 5 Term Rep. 327. 
 
 (4) Rex v. Long Whattoti, j Term 
 
 X 
 
 Rep. 447. Rex •v. Hales, 5 Term 
 Rep. 668. 
 
 (i) Rex v. Holy Trinity in Ware- 
 ham, Cald. 141. 
 
 (6) Rex */. St. Giles Reading,Cald. 
 54. Rex v. Hensingham, ante, 302. 
 (2). Rex v. Cowhoneybourne, zo Eas% 
 88 . 
 
 2 
 
 V. 10 US 
 
308 
 
 after an in¬ 
 valid agree¬ 
 ment; 
 
 rebutted by 
 circum¬ 
 stances. 
 
 A footboy 
 residing with 
 a barber. 
 
 A boy taken 
 m charity. 
 
 Of Settlement by Hiring and Service. 
 
 vious contract was under unstamped articles of agreement 
 to work with his master for three years at so much per 
 week, to increase in the successive years. For a contract 
 of a yearly hiring is to be presumed from a subsequent 
 service for four years; and though the court cannot look 
 at the unstamped instrument for the purpose of proving 
 by it any agreement between the parties, they may look 
 at it to see the duration of the first contract, in order to 
 guide them in receiving parol evidence of the subsequent 
 service to which it did not apply. (i ) 
 
 The fact of servitude however is no more than evidence 
 from whence a contract of hiring may be presumed (2). 
 It may be rebutted therefore by a disclosure of any cir¬ 
 cumstances which shew that the parties did not stand in 
 the relation of master and servant. 
 
 / t 
 
 A gentleman sent a lad who had lived with him 
 three years, and gained a settlement as his foot-boy, to 
 reside with a barber inhabiting another parish, to learn 
 the art of shaving and dressing hair; he gave this master 
 some money to teach him, who was also to have the be¬ 
 nefit^ his work. The pauper lived under this agree¬ 
 ment for more than a year; but it conferred no settle¬ 
 ment, for he was in the nature of a scholar and not of a 
 servant, and the barber had no remedy to compel him to 
 serve. (3) 
 
 Mr. Pyke, who was a mortgagee of a small estate, took 
 the mortgagor’s son into his family from charity; there 
 ms no contract as to service , or the pauper’s continuance 
 with Pyke, and he got meat, drink, lodging, and clothes, 
 but no wages. He lived there four years, doing what¬ 
 ever the servants of the house thought fit to bid him, 
 
 (1) Rex v. Pendleton, 15East, 449. (3) Rex v. Walton, Caith. 40c, 
 
 (a) Ante, 307. n. (3), (4). 
 
 and 
 
Qf the Contract of Hiring . 
 
 and left his master at the age of fourteen. It was consi¬ 
 dered as not being an hiring to confer a settlement, the 
 justices having found that there was no contract, (i) 
 
 y V # 4 
 
 "Where a boy had lived with his uncle as a relation , and A boy llv- 
 not under any hiring; he was afterwards hired by another ”*£ ith h ' 5 
 person as a yearly servant, but returned to his uncle, 
 upon his request by letter, saying, that if he would come 
 and live with him as before , he could surely make it as 
 good or better for him than a common service. There 
 was no agreement with the uncle after his return, either 
 as to time 01 consideration of service j but the uncle often 
 promised, that if he would stay with him for his life, he 
 would leave him his crop, farm, and stock. He lived 
 ^ith his uncle several years, by whom he was found in 
 meat, clothes, and pocket-money, but received no .wages. 
 
 He gained no settlement, for there was no hiring during 
 the first service, and the terms of coming to live with 
 him as before, negative the presumption of such a con¬ 
 tract during the second. (2) 
 
 A waiter to an inn being taken ill, sent for the pauper The helper 
 to help him; which he did, and continued in the inn to a waiter, 
 boot-catcher for 19 months, lodging and boarding there, 
 and was to be satisfied by the gentlemen who came to the 
 house. I he master knew of his being there the nio-ht 
 after his coming, but nothing passed between thein at 
 that time. The waiter continued in the service eleven 
 months after the pauper came there, and the latter re¬ 
 mained for six months subsequent to his going away; the 
 master employed him occasionally on errands, &c. The 
 pauper on going away applied to the master to give him 
 something for the. time he had been there, who refused, 
 alleging he had made no agreement with him; but after- 
 
 (1) Rex «r. Weyhill, Burr. S. C. (a) Rex * Stokesley, 6 Term. Re P . 
 
 4y1, ‘ 757 * 
 
 x 3 wards 
 
3 30 
 
 A negro 
 woman. 
 
 Young girl 
 residing with 
 Iier relation 
 by agree¬ 
 ment. 
 
 Of Settlement by Hiring and Service . 
 
 wards gave him two guineas. The court were of opinion 
 that there was no hiring with the master during the time 
 the waiter continued at the inn, the pauper being then 
 helper to him ; and though the last six months of the ser¬ 
 vice is to be referred to an implied contract with the 
 master, that is insufficient to confer a settlement, for 
 there is no contract, either express or implied, with him 
 
 until these last six months. (i) 
 
 s ^ * . 
 
 The inference of a contract from the performance of 
 acts of service, may be repelled by evidence of the pre¬ 
 vious situation of the parties: 
 
 As where a negro woman, who had been purchased as 
 a slave in America, came to England in her master’s fa~ 
 mily, where she continued to live during his life, in the 
 capacity of a servant, and for some time afterwards with 
 his widow and executrix. The situation of the woman, 
 previous to her arrival in England, negatived the pre¬ 
 sumption which might have arisen from her service, and 
 the court held that she gained no settlement, for there 
 was no contract of hiring. (2) 
 
 So if the parties stand in a degree of relationship to¬ 
 wards each other, which accounts for the reciprocal acts 
 of service and maintenance, without reference to a con¬ 
 tract for service, it seems to have considerable weight in 
 excluding the presumption. 
 
 As where a young girl was sent to by a relation, who 
 told her, that if she would live with her she should have 
 
 (r) Rex t*. St. Matthew’s Ipswich, 
 3 Term Rep. 449. Lord Kenyon goes 
 on to observe, “ If, indeed, the pauper 
 had been before in R.’s service, and 
 then lived under a yearly hiring,mak¬ 
 ing in the whole a year’s service, that 
 would have gained him a settlement.” 
 
 i r 
 
 (2) Rex “v. Thames Bitton, Cald. 
 516. None of the statutes respecting 
 the poor law apply at all to villenage ; 
 the legislature never thought of it. 
 Per Lord Mansfield, C. J. Ibid. 
 
 meat. 
 
Of the Contract of Hiring. - ^ £ 1 
 
 meat, drink, washing and lodging; and the girl ac» 
 cepted the terms, and lived with her as a servant for four 
 years. It was adjudged to be no contract to confer a 
 settlement; for this is no agreement, but an encourage¬ 
 ment to the poor girl, that if she would live with a rela¬ 
 tion, she would maintain her. (i) 
 
 Likewise, when a boy went to live with his uncle, who A boy with 
 was a tailor, at the age of eleven or tw r elve, worked for bls UQC ^ e<i 
 him two years and learned the business; when the unde 
 proposed to take him an apprentice, which the boy re¬ 
 fused, but continued to work for him until he was i y 
 years old; the uncle providing him with board, lodging, 
 and necessaries: the court w ere of opinion, without ar¬ 
 gument, that he gained no settlement, for there was no 
 hiring. (2) 
 
 H. S. was disabled by the loss of a leg, when the pa- Pauper put 
 rish officers of R. where he w^as settled, agreed with R, C. omby 
 who resided in another parish, thatH. S. should live with F * 
 him and do for him whatever he set him about; the pa¬ 
 rish to pay C. 2s. 6d. per week, and C. to find board, 
 lodging, and washing for S. They lived together until 
 Christmas, when C. refused to keep him longer, unless 
 the paiish increased the allowance. The officers con¬ 
 senting, C. agreed to take S. till the Easter following, at 
 w hich time the parish refusing to continue the allowance, 
 
 C. sent 8. home to R. whence he returned to C. and 
 continued to live with him in the same manner as before 
 
 (1) Gregory Stoke v. Pitminster, George IT. seems a mistake of the re- 
 1 Bote, 179. PI. 2,33. But Lord Ken- porter for George I. in the 13th year 
 yon observes upon this case, “ that it . of whose reign it is reported to have 
 “ was determined early in the reign been decided. See also Rex v. Lyth, 
 
 £C of George II. when these questions 3 Term Rep. 327. 
 
 * were not discussed or understood so (2) Rex -y. St. Mary’s Guildford 
 « well as they are at present.” Rex Cald.521. 
 
 Worsfield, 5 Term Rep. 506. 
 
 X 4 
 
 for 
 
\ 
 
 312 Of Settlement by Hiring and Service • 
 
 for more than two years. The court were clearly of 
 opinion that he gained no settlement. The relation of 
 master and servant never existed between S. and C. The 
 former was placed with C. by the parish officers to be 
 maintained by him, and the parish officers had no autho¬ 
 rity to hire him out. After the parish allowance was 
 withdrawn, C. permitted S. to live with him out of cha¬ 
 rity, without any contract as between master and ser¬ 
 vant. (1) 
 
 ASloted. The guardian for the poor of an incorporated hun¬ 
 dred, instead of binding out poor children, allotted them 
 to yearly services within the parishes of the hundred: 
 A pool; boy aged 14, and residing in the house of in¬ 
 dustry was thus allotted to F., a farmer in the district: 
 the guardian told the boy that he had procured him a ser¬ 
 vice with F.; and the boy did, not object, conceiving he had 
 no discretion on the subject. On the day after Michael¬ 
 mas he went to F., who received him, and told him he 
 would give him clothes, and that he was to stay with 
 him a year; which the pauper did, receiving clothes, 
 maintenance, and pocket-money. This is not a hiring 
 to confer a settlement. The adoption of a contract must 
 be the act of a free agent. The boy conceiving he had 
 no discretion on this subject, was obliged to accept the 
 service as being under the control of others; and can¬ 
 not be considered as having adopted the act of his 
 master. (2) 
 
 Put out with 
 his own con¬ 
 sent. 
 
 But though the law says that an overseer cannot 
 contract with another for the services of a pauper without 
 his consent, an overseer may furnish a boy with means 
 to enable him to make a contract of hiring with ano¬ 
 ther. * ~ -- 
 
 (1) Rex v. Rickinghall Inferior, (1) Rex v. Stowmarket, 9 East, 
 1 East, 373. 211. 
 
 A poor 
 
3*3 
 
 Of the Contract of Hiring . 
 
 A poor boy aged 1 6, belonging to the parish of A. 
 offered to serve S., a parishioner of I., who asked him 
 whether he was willing to bind hay, thatch, or do what¬ 
 ever he was bidden: the boy said he was willing, and 
 was taken home to I.; a day or two afterwards S. told 
 him, if you can’t get clothes I can’t keep you, when the 
 boy said that the overseer of D. would find him clothes; 
 and the next day he accompanied his master to the 
 overseer, who agreed to do so, but stipulated with the 
 master that he should allow the parish is. per week on 
 account of the clothes found. The overseer at the same 
 time asked the boy in his master’s presence if he went 
 willingly into his master’s service, to which he assented. 
 This was an original agreement, for an hiring and ser¬ 
 vice between the master and the boy before the overseer 
 knew any thing of the matter, and service under it for a 
 year confers a settlement. (ij 
 
 i * • ' 
 
 The second circumstance required in this contract to 
 confer a settlement is, that it should be for servitude, 
 and intended only as such. An agreement designed to 
 place the. parties in the relation of master and appren¬ 
 tice is insufficient, although it entitles the former to ex¬ 
 ercise an equal control over the person submitted to his 
 authority. 
 
 , t * . T . * I' 
 
 The 3 W. & M. c. 11. and 8 & 9 W. III. c. 3. ex¬ 
 pressly require that the party is to be hired to serve . Not 
 only an apprentice regularly indentured, therefore, can¬ 
 not during the continuance of his apprenticeship acquire 
 a settlement as a servant; but those who serve as appren¬ 
 tices, witho ut any indentures, or under such as are null 
 and void for infor malit y, cannot clai m one, as if their ser- 
 vice had taken place under a contract Tor servitude. 
 
 So 
 
 2. Must be 
 a contract 
 for service. 
 
 Service as 
 apprentice. 
 
 >< 
 
 (1) Rex v, Dunton, 16 East, 352. 
 
Of Settlement by Hiring aud Service . 
 
 So that whenever the forms required to confer a set¬ 
 tlement by apprenticeship have not been observed, it be¬ 
 comes necessary to inquire whether the person claiming 
 a settlement has been hired as a servant, or engaged as 
 an apprentice (i). It is not always easy to ascertain this 
 fact; for a servant may hire himself for the purpose of 
 being instructed’in some particular business, as well as an 
 apprentice. 
 
 This subject comes more regularly under discussion in 
 treating of settlements by apprenticeship; and it is suffi¬ 
 cient for the present to elucidate the rule by the following 
 cases:— 
 
 The pauper agreed to let himself to his brother, who 
 was a carpenter, for a year; by his agreement he was to 
 receive no money by way of wages, but his brother was 
 to teach him as much as he could of the trade during the 
 time, and provide him with meat, drink, washing, and 
 lodging, the pauper to do all his brother’s lawful business 
 in his farming way. This has been held a contract for 
 service and an hiring for a year. (2) 
 
 But an agreement with a stone-mason to take the pauper 
 apprentice for six years, and to teach him the trade , and 
 provide him with meat, drink, washing, lodging, and 
 clothings the pauper to live and work with him as an 
 apprentice, and indentures to be executed between them 
 accordingly; will not entitle the pauper to a settlement, 
 the indenture never having been executed. (3) 
 
 (1) But an invalid contract of ap- fa) Rex f. Hitcham, Burr. S. C. 
 prenticeship by a minor, does not 498. — — 
 
 deitroy a valid contract of hiring pre- (3). Rex u. Whitechurch Cauoni- 
 viously entered into. Rex. >v. Shinfield, coruro, Burr. S. C. J40. 
 
 14 East, 541. post. 
 
 These 
 
3 l S 
 
 Of the Contract of Hiring. 
 
 These cases correspond with each other in almost every 
 particular, except that the agreement in one was to work 
 as a servant, and in the other as an apprentice. Upon 
 that distinction, the pauper in the latter was held not to 
 gain a settlement; because he was not an apprentice for 
 want of a binding by deed, and therefore not settled in 
 that capacity; and he was not an hired servant, as the 
 agreement declares that he was to be an apprentice : he 
 cannot therefore resort to this branch of the statute, when 
 the terms of his contract prove that he meant to come 
 in under another, to which different provisions are ap¬ 
 plicable. ' 
 
 » \ % 
 
 The third circumstance essential to the validity of the 
 contract, respects the time for which the service is to 
 last. The distinctions upon this head have given birth 
 to a number of denominations, which it is necessary to 
 explain, rather to enable the reader to refer to the 
 several collections of cases upon this subject, than for any 
 use made of them by the learned judges in delivering 
 their opinions. Such are successive or several hirings; 
 customary hirings; retrospective hirings; conditional 
 hirings ; special or particular hirings . These terms will 
 be severally defined, in unfolding the distinctions from 
 which they have originated. 
 
 With respect to the time for which the contract is 
 made, it is necessary in many instances to ascertain the 
 period at which it is to commence, as well as that for 
 which it is to continue. The former may be useful in 
 some instances, not only as conducing to determine the 
 latter, but likewise upon other accounts. Thus it may 
 be important to shew, whether the servant w r as inca¬ 
 pable of acquiring a settlement when hired (i); or 
 
 3. Must be 
 an entire 
 contract for 
 a year’s pro¬ 
 spective ser¬ 
 vice. 
 
 Time of 
 making con¬ 
 tract mate¬ 
 rial. 
 
 (1) Ante, 301. 
 
 whether 
 
I 
 
 3 10 JOf Settlement by Hiring and Service. 
 
 whether absence at the commencement of his service 
 arises from a dispensation with the service, the con¬ 
 tract being previously completed, or from the parties not 
 
 having fully concluded their agreement until a subsequent 
 period. (i) 
 
 The pauper being in service with W. wrote to her 
 mother, desiring her to look out for a place for her, who 
 . > consequence, previous to old Michaelmas, treated with 
 
 Mr. P.’s wife, of the parish of R. Mrs. P. informed 
 the mother that she would give her daughter the same 
 wages as she did her other servants, and wait till she came 
 down, and desired her to come as quickly as she could. 
 But the mother made no absolute agreement for her 
 daughter, but afterwards informed her that she had trot a 
 place for her, if she liked it. The pauper left W. at the 
 expiration of her service, came to R. on the 16th of Oc¬ 
 tober, and went into Mrs. P.’s service, at her request on 
 the 18th, when it was for the first time agreed between 
 . Mrs. P. and her that the wages should be ten guineas, 
 with liberty of parting at a month’s wages or a month’s 
 warning. This is a hiring to commence from the 18th, 
 tnere was no reference to any antecedent time, the terms 
 not being settled nor the agreement made until then. (2) 
 
 But where Mrs. M. sent a letter to the pauper’s friends, 
 stating that she gave 3I. a year wages, on which the 
 pauper agreed to go, and sent to let her mistress know 
 when she would come; and in consequence of a second 
 letter, desiring her to come the 11 th of October, she went 
 into the service on the 12th, when her mistress objected 
 to her not having come the day before, for which 
 
 Winter^., CilJ. *98. respecting dispensations of service, end 
 post. 328. (1). Rex -y. Grfndon Under- dissolutions cf the contract. 
 wood,Cald. 359. andmany other cases (2) Rex v . RushalJ, 7 East, 471. 
 
 J die 
 
 1 
 
Of the Contract of Hiring, ' ^ t 
 
 the pauper gave as a reason that she had only quitted 
 her last place late on old Michaelmas-day. About three 
 weeks after she went, the pauper said to her mistress that 
 it was proper to come to some agreement, as they never 
 had any, further than a few lines: to which her mistress 
 answered, “ You know what wages; I sent you word: 
 
 and as the general way is to let for a month’s wages or 
 “ a month’s warning, I do not wish to confine you for a 
 “ year.” The pauper continued in the service till new 
 Michaelmas then following, and it was taken for granted 
 in arguing the case, that the hiring was complete on the 
 11 th of October. (i) 
 
 There m ust be one entire contract for a complete yea r’s Successive 
 service. Successive hirings',~oFsuch as follow each other, hirinss * 
 inlirTmterrupted succession, without an intervening in- 
 teival of time, if sevei ally less than a year, are insufficient 
 to confer a settlement, although they amount to a much 
 longer period of service, when taken together. 
 
 Thus an hiring for two su ccessive p eriods of eleven 
 months each (2); or for two successive half-years (3); 
 or from IVfay—tide to Lady-day, and a new agreement on 
 Lady-day to serve till the May-tide ensuing, is insuffi¬ 
 cient. (4) 
 
 The same point was held, where the hiring was from 
 Whitsuntide to Martinmas, and befrre the expiration of 
 that term there was an hiring to the same master for the 
 
 succeeding half-year, from 
 Whitsuntide following (5). 
 
 (1) Rex v. St. Peter s Mancroft, 
 8 Term Rbp. 477. 
 
 (a) -Rex v . Haughton, 1 Stra. 83. 
 In this case a week, during which the 
 servant was absent, intervened between 
 the successive hirings. 
 
 the said Martinmas to the 
 
 Neither did it make any dif- 
 
 • # 
 
 (3) Dunsford v. Ridgwick, Salk. 
 535 - 
 
 (4) Horsham v. Shipley, Fol. 134. 
 
 (5) Rex v. Lowther, Burr. S. C. 
 674. 
 
 ference 
 
/\ 
 
 $ 
 
 iS 
 
 Of Sett tc/?lent by Hi t 1and Scvvics* 
 
 t ® 
 
 » 
 
 adjudica- ^ ^ el ence * n fbe latter case, that it was a customary of 
 sessions S enera l m °de of hiring servants in that part of the 
 
 affectaot. colmtr y 5 and that the case set forth, that in Cumber¬ 
 land the quarter sessions (from whence it was stated), 
 had by invariable practice as long as can be remem¬ 
 bered, adjudged an hiring for two successive half-years, 
 and service under it for a whole year, to be a settlement" 
 
 lor the words of the act are positive that the hiring shall 
 be for a year. 
 
 a whole f ° r So where tIiere is ba t one contract, if it be made but for 
 year. a day or two short of a year, it is not the hiring required 
 by the statute; therefore an hiring from the 3d of October 
 until Michaelmas day ensuing is insufficient. (1) 
 
 Where there was an hiring three days after old 
 Michaelmas, until the next Michaelmas, and the pauper 
 continued in the service until the day after old Michaelmas- 
 day, which being leap-year, made a service of three hun¬ 
 dred and sixty-five days; the court was clearly of opinion 
 against the settlement, because there was no hiring for a 
 year; for a contract made three days after Michaelmas, 
 
 . to serve till the Michaelmas following, is an hirin 0 * two 
 days short of a year. (2) 
 
 1 
 
 Customary And its being the customary mo<je of hiring in that 
 part of the country makes no alteration in the law. 
 Where it was the custom for servants to hire by the year 
 at two different statutes, the one held on the Friday 
 before and the other on the.Friday after old Martinmas 
 day, and the servant was hired from the Friday after 
 until the old Martinmas following; it was adjudged insuffi- 
 
 9 . 4 . 
 
 (1) Pepperharrow <u. Fr.encham, 
 For. 135. j and see Coombe ik West- 
 woodhey, 1 Stra. 143. R ex New¬ 
 ton, Burr. S. C. 157. 
 
 (2) Rex v. Ackley, 3 Term Rep. 
 250. Rex v. Mursley, 1 Term Rep. 
 694. S. P. 
 
 cient. 
 
Of the Contract of Hiring, 
 
 cient, although the case stated it to be the custom of the 
 country to consider it as an hiring for a year; for such a 
 custom originating since the statute, and therefore long 
 
 within the time of memory, cannot control an act of 
 parliament. (i) 
 
 Neither will it make any difference, that the avowed If with a 
 object for curtailing the time of service is to defeat the 
 
 jeat me set. 
 
 dement, it 
 is not frau¬ 
 dulent. 
 
 Where the master at the time of hiring told the servant 
 that he should not gain a settlement in the parish, and 
 hired him three days after Michaelmas to serve until the 
 Michaelmas following, the hiring was held not to be 
 within the statute, although the sessions found that such 
 transactions were fraudulent on the master’s part (2). 
 For the question of fraud only arises, where in truth 
 there is an hiring for a year, but the parties endeavour 
 
 to colour it, in order to prevent the pauper’s gaining- a 
 settlement. (3) os 
 
 But in favour of settlements, the day of entering upon Days where 
 the service, and that of leaving it, are usually consi- inclusi,e - 
 dered as included in the contract; for the law makes 
 no fraction of a day, and the servant is under his mas¬ 
 ter’s control during a part of each. Tims an hiring on 
 the day after old Martinmas day until the old Martin¬ 
 mas day following is good, and that without resorting to 
 
 Las. 156., where the two mops or 
 
 (1) Rex v. Harwood, Cald. ioo. year. S< 
 South Cerney <*/. Coultshorne; i Sess. pest. 321. 
 
 ar. See Rex v. Standen Massey, 
 st. 321. 
 
 (2) Rex Mursley, 1 Term Rep. 
 
 ceding and subsequent to Michaelmas- 
 «iay,aBd wages were paid for the whole 
 
 (3) Per Butler, J. It, 
 
 any 
 
 
32£ Of Settlement by Hiring and Service . 
 
 any particular custom in the country to explain the agree¬ 
 ment. (i) 
 
 Customary The only cases of customary hirings which are consi¬ 
 dered as giving rise to any general distinction, are con¬ 
 tracts for service from one moveable feast to the same in 
 the ensuing year. Where such hirings have been inter¬ 
 preted by the practice of the country to mean a year, 
 it seems in one case to be considered as sufficient to give a 
 settlement, although the intervening period of time was 
 less than three hundred and sixty-five days; as where the 
 hiring was from Whitsuntide to Whitsuntide. (2) 
 
 I have been able to find but one case expressly deciding 
 the point, but the principle has been acknowledged in 
 others. (3) 
 
 In a subsequent decision, however, it has been de¬ 
 clared a Case of doubtful authority (4): and it has been 
 recently determined that where a statute fair was held 
 yearly on the day after old Michaelmas except when old 
 Michaelmas falls on Saturday, and then the fair is held 
 on the ensuing Monday, a hiring from such Monday 
 until the old Michaelmas following is not an hiring for 
 a year, under which a -settlement can be obtained. It 
 is neither an hiring from one moveable feast to another. 
 
 (1) Rex v. Skiplam, i Term Rep. 
 490. Rex v, Syderstone cum Bermer, 
 Cald. 19. Dougl. 441. S. C. Rex v. 
 Adson, 5 Term Rep. 28. See also 
 Rexv. Navestock,post. (3),where it was 
 stated to be the custom and usage of 
 the country to hire a serrant at the 
 statute fair, being the day after old Mi¬ 
 chaelmas, to serve until Michaelmas 
 following; and that circumstance is 
 relied upon by Lord Mansfield as 
 r«aterial to explain the word “ till,” 
 
 12 
 
 which may or may not be exclusive 
 according to the subject matter; and 
 the case as explained. Rex <v. Har¬ 
 wood, Cald. 100. ante,3i9. (1). 
 
 (a) Rex <v. Newstead, Burr. S. C. 
 669. 
 
 (3) Rex v. Navestock, a Bott, 233. 
 PI. 277. Rex v. Harwood, Cald. 
 
 100. 
 
 (4) Per Lord Kenyon, Rex v. Bow, 
 8 Term Rep. 445., and see Rex v. 
 Harwood, ante, (3), 
 
 nor 
 
Of the Contract of Hiring. 
 
 nor from okl Michaelmas to old Michaelmas (i). But 
 where a servant was hired from Whitsuntide to Whit¬ 
 suntide when the interval consisted of more than three 
 hundred and sixty-five days, and was discharged before 
 the ensuing Whitsuntide for being pregnant of an illegi¬ 
 timate child; but after having served three hundred and 
 sixty-five days, the service was held sufficient to confer a 
 settlement. (2) 
 
 1 
 
 The next circumstance necessary to the validity of the Must he 
 contract, in respect of time, is, that it must be prospective. P 10 S P ective - 
 The terms used in the statute express futurity, and no 
 part of the year for which the agreement is made, should 
 be elapsed at the time when it is entered into. It may be 
 for a year to commence at some future time, as a week 
 or fortnight after the hiring (3); and the service need 
 not commence in fact at the time when the servant’s year 
 commences, inasmuch ns it may be dispensed with by the 
 master. (4) 
 
 But where the agreement is made so that by-gone time Retrospec¬ 
 ts to be calculated as part of the year, and included in tlve hin " s * < 
 computing it, this is called a retrospective hiring, and no 
 settlement can be gained by service under it. Thus where 
 a servant went into a place upon liking, and after he had 
 lived theie eignt weeks, his master hired him for a year, 
 to commence from the beginning cf the said eight weeks, it 
 is a retrospective hiring. (5) 
 
 The law is the same, though the period elapsed, 
 which is to be included in the year, is no more than 
 
 (1) Rex v. Standon Massey, (4) R.ex <v. Tslip, 1 Stra. 423. 
 
 10 Past, 576. (5) Rex Il^.rn, Burr. S. C. 304. 
 
 (2) Rex Ulverstone, 7 Term Rex v. Hoddesdon, Cald. 23. Rex v. 
 
 Rep. 564. Marron, 4 Term Rep. 257. Coombe 
 
 (3J Rex * z/ - Bank Newton, Burr. Westwoodhey, 1 Str. 143. 
 
 S. C, 455- 
 
3 2 2 Of Settlement by Hiring and Service. 
 
 a day or two. Where A. was hired to B. six weeks after 
 Michaelmas, to the Michaelmas following • and before 
 his time was out, offered to live with B. for another 
 } ear from that Michaelmas-day, if he would give him four 
 pounds a year. That proposal not being agreed to, he 
 went away c n Michaelmas-day; and three days after the 
 master agreed to give him the money, and he immediately 
 entered on the service: this was held not to be an hiring 
 for a year within the statute. (i) 
 
 Conditional These sort of hirings, however, are to be carefully 
 humgs. distinguished, from such as are called conditional; that is, 
 where the contract is actually made for a year of prospec¬ 
 tive time, but may be dissolved upon certain terms at the 
 reciprocal election of the parties. 
 
 Thus an agreement t o live as servant for a quar ter of a 
 year, and ii the parties liked each other, then she would 
 continue his servant for the remainder of the year (2); 
 to come for a quarter, after the rate of twenty shillings a 
 year, and if the servant and his master liked each other, 
 he was to continue on (3); or to go into service a month 
 upon liking, and have five pounds a year wages, but to 
 go away on a month’s wages, or a month’s warning, to 
 be at any time paid or given on either side (4); or being 
 hired for a year, at yearly wages, payable quarterly: 
 either party to be at liberty to determine the contract, at 
 any quarter of the year, giving a month’s notice (5); are 
 hirings sufficiently good, where the service continues for 
 the year. And it makes no difference that the servant 
 declares at the time of hiring, that the reason why this 
 
 (1) Rex.'y. West well, 1 Barnard, K. 
 B.3J4. 
 
 (2) Rex v. Lidney, 2 Str. 950. 
 
 (3) Rex v. St. Ebbs, Burr, S. C, 
 289. 
 
 (4) Rex v. New Windsor, Burr. 
 S. C. 19. 
 
 (5) Rex 1/. Atherton, Burr. S. C. 
 203. See also Wandsworth v. Putney, 
 2 Bott, 188, Ph 240. post. 327. (2) 
 
 condition 
 
 
Of the Contract of Hiring . 
 
 condition is inserted in the contract is, to avoid a settle¬ 
 ment. (i) 
 
 In these cases, the hiring was originally conditional; 
 but the condition went only in defeazance of the contract; 
 and the relation of master and servant being continued 
 fo r a year , the agreement niustliel^en as if the inope- 
 rativeconclition had never existed. 
 
 The distinctions taken hitherto relate to cases where 
 the time of service is specified in the agreement. There 
 are many instances, however, in which no particular 
 period is mentioned for the continuance of service; such 
 cases have been distinguished by the appellation of general 
 hirings. When the contract is thus silent, and nothing 
 appears upon the face of the transaction, from whence 
 its duration can be deduced, the law, in conformity to 
 the several statutes which regulate the service, especially 
 of servants in husbandry, infers that it is made for a 
 year. (2) - 
 
 General 
 
 hirings. 
 
 The principle must of necessity attach upon all cases implied 
 of implied hirings, strictly so called ; that is, where no hirm&s * 
 express agreement appears (3). It is equally applicable 
 to cases where the contract is explicit in ether particu¬ 
 lars, but silent as to the time of its continuance. A 
 boy was hired to serve in husbandry, and his master 
 agreed to give him meat, drink, washing, lodging, and 
 clothes when wanted; but no particular time was agreed 
 on (4), Another boy went into an inn yard, and asked 
 
 (1) Rex v . Atherton, ut supra, year, for that retainer is according to 
 
 3 a ** (5) law.” Co. Lit. 42. b. 
 
 (2) 24 Edw. HI. c . T. 4 Hen. IV. (3) Rex <v. Lyth, j Term Rep, 
 c. 14. 23 Hen. VI. c. 13. 5 Eliz. 327. Ante, 307. (3) 
 
 c. 4. “ If a man retain a fervant ge- (4) Rex v. Winzaunton, Burr. S.C. 
 aerally, without expressing any time, 299. 
 the law shall construe it to be for ene 
 
 Y 2 
 
 the 
 
324 
 
 Hirings for 
 
 indefinite 
 
 time. 
 
 Of Settlement by Hiring and Service. 
 
 the master whether he wanted a boot-catcher and driver, 
 and being answered yes, replied he should be glad to serve 
 him, and was ordered to take care of the horses, and not 
 to drive them too hard, and no mention was made of 
 meat, drink, washing, and lodging, but he was found in 
 them, and received no wages ( i.) The pauper served 
 the keeper of a public-house in his stable, and his master 
 agreed to find him meat, drink, washing, and lodging in 
 his own house, but was not to give him any other wages but 
 what he might receive as perquisites of the stables, and 
 no particular time was stipulated that he should serve (2). 
 One Jones met a servant girl, then in place with one 
 Smith, and asked her whether she was again hired to 
 Smith; she replying in the negative; he inquired “ if 
 “ she would come and live with him, and take care of 
 “ his child 3 ” to which she consented, and soon after 
 went to him. Two or three days after she came, Jones 
 told her that he would find her in meat, drink, and 
 clothes, and asked her it she would be satisfied with that; 
 she told him she would (3). These have been adjudged 
 linings by the year; and the opinion of the master and 
 servant as to their being entitled to separate at pleasure, or 
 bound to continue during the year, was held to make no 
 difference in the case. (4) 
 
 The ruie seems also to extend to cases where the parties * 
 use expi essions which refer to an indefinite term of ser¬ 
 vice. I he pauper having been hired and served for 11 
 months, his master said to him, “ You may as well stay 
 on an end in your place; the place suits you and you suit 
 the place.” The servant’s answer was, “ Very well, Sir, 
 
 I have no objectionand he continued to follow his 
 
 (1) Rex <z/. S'.ockbridge, Burr, S. C. (3) Rex -y. Worfield, 5 Term Rep. 
 
 759 * 506. 
 
 (2) Rex t.’. Bath Easton, Burr. S.C. (4) Rex-p. Stockbridge, Burr. S. C. 
 
 c2 3 ‘ 759 - See also Rex v. Bath Easton, 
 
 Burr. S. C. 823. ante, (2) 
 
 master’s 
 
Of the Contract of Hh 'ing. 
 
 325 
 
 master’s business near three years. . The words, you may 
 as well stay on an end , in that part of the country, means 
 an indefinite time, and must therefore be considered as a 
 general hiring, which the law construes to be an hiring 
 for a year. (1) 
 
 This inference of a yearly hiring is not rebutted by General 
 proof, that it was connected with previous service for a onTfor less 
 less period. Where the pauper was hired from March than a ) ear - 
 till Michaelmas, and continued to serve until her mistress 
 died two or three years afterwards, without a second 
 hiring; it was held that the continuance in the service 
 was sufficient evidence to infer a subsequent hiring for a 
 year. (2) 
 
 And this presumption is not affected by the servant’s Though 
 leaving his place in some succeeding year, at a period serva " c , 
 
 & ^ 7 r quits in the 
 
 which does not correspond with its regular close, from the middle of a 
 time of entry upon the service; for as it was compe- ^ ear ‘ 
 tent to the parties to put an end to the agreement at any 
 time by mutual consent, the law will rather suppose that 
 they exercised this right, than break in upon its favourite 
 principle. (3) 
 
 Several reported cases do not come properly under the Special hir. 
 denomination of general hirings, although they bear a inss ' 
 strong analogy, inasmuch as they contain no express sti¬ 
 pulation respecting time; but they differ insomuch as the 
 
 (1) Rex v. Macclesfield, 3 Term 
 Rep. 76., and so explained by Lord 
 Ellenborough, C. J. Rex i>. Tolisbunt 
 Knights, 1 Const. Append. 750. 
 PI. 1071: 
 
 n. (3); where the girl lived with Jones 
 a year and a half, when her mistress 
 told her that her child was ol i enough 
 not to require attendance, and dis¬ 
 missed her. But in Rex v. Puckle- 
 church, home stress seems to have 
 been laid upon the pauper’s quitting 
 the service at the end of the week and 
 in the middle of the year, 5 East, 386. 
 
 (4) Rex *y. Long Whatton,5 Term 
 Rep. 447. See also Rex v. Hales, 
 5 Term Rep. 668. 
 
 (3) Rex v. Worfield, supra, 324. 
 
 Y 
 
 3 
 
 intended 
 
32 <S 
 
 Special 
 yearly hir¬ 
 ings. 
 
 Of Settlement by Hiring and Service. 
 
 intended duration of the service is not altogether a con- 
 elusion of law, but maybe collected from the remaining 
 terms ot the agreement; the circumstances attending it- 
 or the conduct of the master and servant during its con¬ 
 tinuance. As these hirings depend upon special or par¬ 
 ticular circumstances, they are therefore, as I suppose, 
 denominated special or particular hirings. Whether such 
 an agreement amounts to an hiring for a year, is rather a 
 mattei of fact to be collected by the magistrates from 
 le w iole transaction, than a question of law. But the 
 court of lung’s bench, when the facts are stated in a case, 
 will adjudge whether it is a sufficient hiringfor a year (,). 
 
 us conclusion may be inferred, not only from the ex¬ 
 pressions used, but the manner in which wages are to be 
 paid, the condition of the parties, the nature of the ser- 
 
 7“’ r7. aCt 'r al duration > and P er haps the general prac¬ 
 tice of the district in which the hiring takes place, as to 
 
 the usual period of servitude. These, and many other 
 circumstances, may enable them to ascertain the fact • 
 and where, either from the original inaccuracy of the 
 paities at the time of making the agreement, or their 
 want of recollection when called upon to give it in evi- 
 uence, they seem to contradict each other, magistrates 
 must endeavour to explore their way as well as they can; 
 yet leaning, as the cases seem to do, towards the legal 
 presumption in favour of a yearly, contract, if the cl 
 elusion is otherwise doubtful. ( 2 ) 
 
 Some cases ot this kind afford a more direct inference 
 Ot an yearly hiring than where it is altogether general 
 because the terms used, although introduced form, other 
 pm pose, prove the parties to have meant that the service 
 ^ould continue for a year. Thus where the agree- 
 meiK expressed, that the servant was to have S l. a year 
 
 » C'*• (2) See Re ‘ 
 
 »urr. a. ^. 19, ante, ^ 
 
 wages; 
 
3 2 7 
 
 Of the Contract of. Hiring. 
 
 wages(1)5 where the master told a boy coming into his ser¬ 
 vice, that if he staid a year, and behaved well, he would 
 give him a livery and wages the next year (2); these are 
 clear yearly hirings, although nothing else passed about 
 time. The reference to wages for a year in the first case, 
 and to a conditional continuance of service for a year in 
 the second, shews that the parties intended to continue 
 their relation of master and servant for so long. 
 
 So where the head keeper of a chace, having parted 
 with one Hill, who had been many years his servant, at 
 yearly wages, and a keeper’s livery, &c. asked the pauper, 
 « Do you like the life of a keeper ?” and being answered 
 « yes ” said, “ then go into Ned Hill’s place, and 
 “ you shall want no encouragement; I’ll give you a 
 “ suit of clothes directly.” Here the reference to the 
 terms upon which the former servant had lived with 
 him, manifest an intention to engage the new servant for 
 the same period as Hill had been hired, which was for a 
 year. (3) 
 
 There are however a different class of special hirings, 
 in which it is more difficult to ascertain their intended 
 continuance, as they contain facts which contradict and 
 clash with each other. These, so far as they seem refer¬ 
 able to any general principles, may be divided into three 
 kinds: 1. where the payment of wages is reserved at 
 stated periods less than a year; as if they are made pay¬ 
 able weekly or monthly; 2. where a power exists of 
 terminating the service within the year, but restricted by 
 
 (1) Rex v. New Windsor, Burr. (3) Rex v. Berwick St. John, 
 S. C. 19.. The agreement also was, Burr. S. C. 502. This hiring would 
 that she was to go away on a month’s be good as a general one, without any 
 wages or a month’s warning.” reference, and was so considered by 
 
 (a) Wandsworth v. Putney, % Bott, the judges; 
 
 18$. PI. 240. 
 
 Y 4 
 
 Division of 
 special hir¬ 
 ings. 
 
 a cou» 
 
328 °f Settlement by Hring and Service. 
 
 * C ° nditi0n of S ivin « previous notice, or, as it is called, 
 
 ummrtf ’ 3 ‘ W, r re thS C ° Urt haVe formed their opinion 
 upon the general circumstances of the case. 
 
 diJLtil be f wT ed ’ pr f i0us t0 ente ™« n P° n those 
 
 parties, not tinctions, that the court have laid it down as a general 
 tt?Z e L 7? “—^ning this and all other parts of the contract, 
 
 < io parties apprehension or understanding of the 
 eifect and legal consequence of their agreement, can have 
 no weight m that judicial conclusion which is to be formed 
 respec t t real import. Ifit were otherwise, paupers 
 d be judges and not witnesses in the cause (i). But 
 any act of theirs done during sendee, although it origi¬ 
 nates from their understanding of the agreement, seems 
 admissible as an help to interpretation, where the terms 
 e contract are not distinctly proved (2); for what is 
 
 " S t d ° ne , Can no reference to the question of settle¬ 
 ment, and is evidence by one party of the engagement 
 
 ' ,'h':; h ;" bM *« •>- *■ -*»• 
 
 n the other side, amounts to a virtual acknowledgment 
 of he same fact; and the conversation between master 
 
 ana servant has been received under similar circum- 
 otances ior the like purpose. (3) 
 
 The general rule as to the effect of reserving wages at 
 short and stated intervals within the year, in ascertaining 
 the duration of the hiring, is, that if there beany thij 
 m the contract to shew that the hiring was intended to be 
 
 ito buMf 7 1 8 reServatlon of -ages will not controul 
 ; 7 f the Payment of -ages weekly or monthly 
 be the only circumstance from which the duration of the 
 
 I. Special 
 hirings, with 
 wages re¬ 
 served pe¬ 
 riodically. 
 
 (1) Rex V; Wincaunton, 2 Bott, 
 
 1< ' 1 2 ‘ 2 4 i* Rex v. Seaton and 
 
 Beer, Cald 44 o. R ex Birming¬ 
 ham, Dougl. 233. ante, 305. (1). Rg X 
 
 Eislack ’ B° st * 329 . There are many 
 other cases to the same effect. 
 
 (2) Rex v. Dedham, Burr. S. C. 
 
 653- Rex v. Seaton and Beer, supra, 
 (0 n. (2). Rex v. Wintersett, Cald. 
 298. post. 335. Rex Puckle . 
 church, post. 329. (i). 
 
 ( 3 ) Rex^p. Seaton and Beer, Cald. 
 440. Rex 1/. Overnorton, 15 East, 
 347 - ante, 307. (1). 
 
 contract 
 
329 
 
 Of the Contract of Hiring ,. 
 
 contract is to be collected, it must be taken to be only a 
 hiring by the week (1) or month (2), for the wages be¬ 
 coming due at the end of these periods, the contract out 
 of which they arise must have terminated. (3) 
 
 Thus an agreement to live as hostler at an inn, “ at 
 “ four shillings and sixpence per week,” is an hiring 
 only for a week (1). That conclusion has been made 
 more strong in some cases by additional circumstances. 
 As where the hiring was at one shilling and fourpence a 
 week, board and lodging, for as long a time as the 
 master should want a servant: the servant was paid her 
 wasres at the end of seven weeks, and so on after two or 
 
 O * 
 
 three months, as she wanted money. This is only a 
 weekly hiring, for she could not be discharged at the end 
 of the year if it should happen in the middle of her 
 week (4). An hiring “ at so much a week for as long¬ 
 time as the master and servant could agree,” is a hiring 
 by the week, for it is a hiring for as long as they could 
 agree from week to week. (5). 
 
 The pauper went to live with a livery stable keeper at 
 9s. per week, without fixing any time for the expiration 
 of such sendee: some time after, a post-boy going away, 
 the pauper was turned over by his master to take his place 
 at 3 s. per week, and the money he could get from those 
 lie drove. He served in this employment above a year, 
 when he left his master, but returned afterwards, when 
 his master told him he might go to work, and then re- 
 
 (1) Per Buller, J. Rex v. Newton 
 Toney, 2 Term Rep. 453. Eod. Jud. 
 Rex. «*/. Hampreston, post, 332 (2) 
 also declared to be a settled rule. 
 Rex v\ Pucklechurch, 5 East, 302. 
 Rex v. Ciare, post. 333. (2) 
 
 (a) Ibid. Rex v. Tolishunt Knights, 
 post. 333. 
 
 (3) There is no decision upon a 
 
 case where the payment of \va:es refers 
 to stated portions of a year eo nomine, 
 viz. ; ‘ quarterly or half yearly,*’ or at 
 the “ end of a quarter, 5 ’ or “ of half a 
 year.” 
 
 (4) Rex v. El-tack or Elslack, Calcl. 
 489. 
 
 (5) Rex v, Mitcham, 12 East, 3 51. 
 
 t 
 
 mained 
 
33° 
 
 Of Settlement by Hiring and Service. 
 
 mailied one year under that agreement. This was held 
 not to amount to an yearly hiring, (i) 
 
 The pauper hired himself for eight weeks, at cs. per 
 " ee ’ anc * at ^ le expiration of that time for three months 
 at 4s. per week. He then entered into a new agreement 
 with the same master, to live with him, the master find- 
 mg him board and lodging, and paying him 2s. 6 d. per 
 week; but no time was fixed, or talked of, by the master 
 or servant, for the duration of the contract. When the 
 summer season arrived, the pauper said to his master, “I 
 must have more now, I believe, master.” The master 
 satd “ How much more ?” and his wages were increased. 
 And so as the winter or summer succeeded, his wao-es 
 were accordingly reduced or increased. The alterations 
 of wages took place at the beginning of the week. He 
 entered and left his service on the same day, being Sun¬ 
 day, He served in the whole five years and a quarter, 
 and received money on account of wages; but there was 
 
 no general settlement of wages till he and his master 
 parted, at which time one took place. 
 
 He gained no settlement, for the first and second hiring 
 were for definite periods, short of a year. No time was 
 mentioned at the third hiring, but it was at weekly wages; 
 an this being the only circumstance from which the 
 duration of the contract was to be collected, it must be 
 taken to be only a weekly hiring. Besides, if there were 
 any doubt, a circumstance confirmatoiy of this construc¬ 
 tion is, that the servant in the middle of the year re¬ 
 quired an advance of wages, which the master acceded to 
 without any question (2), and he left his master at the end 
 ot the week in the middle of the year. (3) 
 
 (1) Rex v. Odiham, 2 Term Rep. 
 £22. i he esse was given up as too 
 clear to admit of argument. 
 
 (2) See Rex v. Dedham, Burr. 
 s - 1 1 - ^53* Post. 335. 
 
 ( 3 ) Rex -n. Pucklechurch, 5 East, 
 382. 
 
 But 
 
33 1 
 
 Of the Contract of Hiring. 
 
 But the rule states that this inference, arising from the 
 payment of weekly wages, may be controuled by other 
 circumstances; in which case, it is considered as intro¬ 
 duced to arrange the manner of paying wages, so as to 
 suit the parties’ convenience. 
 
 ' ! ’ -"'i t 
 
 Thus where an innkeeper agreed to “ give the pauper 
 “ one shilling a week, as she had given the other man or 
 “ men, and the vails of the stables,” nothing was said 
 as to the time of service, and nothing appeared as to the 
 time for which such other man or men were hired, but 
 at the end of the year his mistress said to him, “ you have 
 “ been here a year, and I will pay youto which he 
 answered, “ it is no matter, I may stay with you another 
 “ yearand she replied, “ very well (i).” The court 
 were of opinion, that it appeared from the conversation 
 of the parties at the expiration of the first year’s service, 
 together with the other circumstances of the case, that 
 the original hiring was intended to be for a year; but 
 that at all events the second engagement was clearly a 
 'Conditional hiring for that period. (2) 
 
 The second class of special hirings, contains a power of 
 giving warning, or in other words, a condition by which 
 the parties are enabled to put an end to the sendee at a 
 period short of a year, upon giving stipulated notice. 
 Where the reserved interval between the time of giving 
 warning and that of quitting the service is longer than 
 the time at which the wages are made payable, it is strong 
 enough to controul the conclusion against a yearly hiring, 
 which would otherwise arise from that mode of payment. 
 This has been held not only where it was accompanied 
 with corroborating circumstances, such as an hiring “ at 
 44 three shillings a week the year rounds each to be at 
 u liberty on a fortnight's notice; but the servant not to go 
 
 (1) Rex v. Seaton and Beer, Cald. (2) See ante, 330. and the cases 
 
 44 °* post. 
 
 44 axvay 
 
 2 . Special 
 conditional 
 hirings, or 
 with warn¬ 
 ing. 
 
 Where 
 times of 
 warning and 
 paying 
 wages differ. 
 
33 2 
 
 When time 
 of warning 
 and of pay¬ 
 ing wages 
 coincide. 
 
 Of Settlement by Hiring and Service. 
 
 ‘IT* f See t f le ’ ha V’ or harve S t(i)f but also where 
 
 f ° tiCG ° nIy til ' cumstari ce from 
 
 v hence the inference could be drawn. An agreement 
 
 therefore with a miller “ to serve for three shillings and 
 
 « a We ° k ’ ,° r at the rate °f four sh illings a 
 
 monfl ’ ’ pa ! havln 8 a libert y of parting „„ a 
 month s notice on either side, is an hiring for a year, for 
 
 the insertion of the liberty to separate on a month’s no 
 
 ceTtafoTe ^ in T'T ° f W£ « es was ‘o as- 
 to limit th P T at thCy W6re *° be P aid > andn °t 
 
 was to lasH J T ° f the contract ; and as the service 
 ' r than a week (2)> it becomes an hiring 
 
 unlimited in duration, with the insertion of a con¬ 
 dition by which it may be dissolved on either side; which 
 is a general hiring for a year. (3) " 
 
 The general rule therefore is, “ that wherever the re- 
 la ion of master and servant is to continue for an indefi¬ 
 nite tune, and cannot be put an end to at the election of 
 
 r ice ’ the hwn «— 
 
 stood to be an hiring for a year (4) 5 but where the time 
 notice corresponds with that at which the wanes are 
 1 endered payable, the contract is no longer indefinite but 
 
 "t“« , tae »"«■■■P ™ 
 
 Lie's ’ ^ hus wb * re die pauper agreed to work for 
 
 week’ with m^'V a,ld six P ence a 
 
 eek, wit, meat, drink, washing, and lodging at S’s 
 
 house and to part on a week’s notice by either party • 
 
 no notice being given, he served S. for six years, without 
 
 any alteration in the terms, except that after he had 
 
 served about four years, the wages were raised from tliree 
 
 ^ P*"*.-* an hir^ 
 
 Repl 'l” Krdbrooke > 4 Te ™ (3)Ante^M. 
 
 ^ - 
 
 (5) Rex v. Hanbury, 2 East, 423. 
 
 The 
 
333 
 
 Of the Contract of Hiring . 
 
 The pauper let herself to Mrs. H. at six shillings per 
 month, with a month’s wages or a month’s warning: 
 after a month’s service, she removed with Mrs. H. into 
 another parish, who then told her, that if she would stay 
 on , as there would be some additional work, she should 
 have eight shillings per month , and live on ’with a month’s 
 Wages or a month's warning as before. This was held to 
 be a hiring for a month, upon the authority of the former 
 case, not being distinguishable from it. (i) 
 
 So also, where a journeyman miller hired himself “by 
 “ the month , at the wages of eight shillings a month, to 
 <£ be at liberty to depart from his service at a month’s 
 “ wages or month’s warning,” with an agreement, that 
 if he continued in the service the harvest time he should 
 be at liberty to let himself for the harvest month to any 
 person he chose: it is an express hiring for a month. (2) 
 
 This is a case still more plain than the foregoing, inas¬ 
 much as the hiring was expressly for a shorter period than 
 a year (3), and when that occurs, it of necessity excludes 
 the conclusion which might otherwise be drawn in favour 
 of a yearly hiring, when the time of giving notice ex¬ 
 ceeds in duration that at which wages becomes payable. 
 Thus an agreement to live with one 66 by the wee/c,” at 
 two shillings and sixpence a week, “ and to part at a 
 (( fortnight or month’s notice,” is not an obligation on 
 
 (1) Rex */. Tollishunt Knights, 
 I Const. App. 750. PI. 1071. See 
 also the opinion of Dennison, J. Rex d. 
 Wrington, Burr. S. C. 3&1. There 
 the pauper worked in the business of 
 hurling -cloths by a weekly hiring or 
 agreement, at the weekly wages of is. 
 and 6d. in the winter, and 33. in the 
 
 summer. On the Saturday in each 
 week, when the master paid her wages, 
 he said to her, “ that she should come 
 the week following.” 
 
 (3) Rex v. Clare, Burr. S. C. 819. 
 
 (3) In this case there seems to 
 have been an exception in the contract 
 of the harvest month, see post. 335. 
 
 the 
 
 j 
 
 Warning, 
 coupled with 
 other cir¬ 
 cumstances. 
 
Of Settlement by Hiring and Service. 
 
 fori t0 / erve for ayear > but an hiring 
 01 stipulated time of a week, (^I'j 
 
 » ' c 
 
 / 
 
 .i^fyTa?: . ° ther circumstances will sometimes prevent the con- 
 
 ly luring elusion, that an indefinite hiring is for a year 
 negatived by thp nahum nf a + 1 , . ® a year, ouch are 
 
 other cir- 110 trade > and the relative situation of the 
 
 cumstances. parties. Where a boy had worked from six to sixteen 
 
 with his step rather, in his trade of a button-maker, with- 
 cut any compensation besides maintenance and pocket 
 money; lie then left him, having insisted upon a larger 
 a Iowance, which the father refused. The pauper re- 
 turning after some time, it was agreed between them, 
 
 , t , that ht ' shou!d llve in the house, to work as before at 
 
 “ butt Y'' 13 ^ be PaM 3 PeMy f ° r 6ach S ross of 
 „ Z (hc'cg the same wages as his step-father paid 
 
 « f m 7 0 , ™ n ’ deductin S at t he rate of five shillings 
 , a Z hlS board ’ vvas hing, and lodging:” this Is 
 not a hiring for a year, but of a workmanto work by the 
 
 piece (,). So where a plumber and glazier let himself at 
 the wages of six shillings a week, board, lodging, and 
 . washing, summer and winter; and after servL Jfeven 
 months, his master having taken an apprentice. Told him 
 he must lodge out of the house, upon which he demanded 
 Sixpence a week more, threatening otherwise to quit the 
 
 Sm C the° n aC T nt ° f ^ maSt6r ’ S havin S withdrawn 
 
 fi om. the original agreement, and was paid it. This was 
 
 n0t t0 be l hiring 5 f ° r the sti P ula tion 
 x shdhngs a week wages, summer and winter, only 
 
 imports an agreement, that the wages should continue 
 always the same; and the presumption of a reciprocal 
 obligation between the contracting parties , which is ne¬ 
 cessary to constitute a general hiring, is destroyed by a 
 
 Ji) Re, v. Erlich, Burr. S. C. Burr. S. C. ' 5I3 . S ee also R« 
 
 ,' VT > c „ , Wrington,Burr, S. C. 280. 
 
 ( a )^ ex v ' St. Peter s Dorchester, 
 
 10 
 
 demand 
 
Of the Contract of Hiring. 3 - 
 
 demand of an increase of wages, and the master’s com¬ 
 pliance in consequence of a threat on the part of the ser¬ 
 vant, that he would otherwise quit the service. (3). 
 
 ♦*' y; 1 * ’ 1 * '"■» * 
 
 So where a boy being hired a few days before Martin¬ 
 mas, to serve from Martinmas for a year, fell ill the very 
 night of the hiring, and did not go into service for a month 
 afterwards; when he and his mother went into the mas¬ 
 ter’s house, who being from home, they were shewn to 
 his wife, who complained that the pauper had not come 
 into the service according to the agreement, and therefore 
 refused to receive him; whereupon the pauper’s mother 
 said, <c we must fall into your way for wages, and take 
 “ what you will allow usand left the pauper in his 
 service, where he continued until Martinmas following, 
 when the mother was sent for, and received for forty- 
 eight weeks wages, after the rate of one shilling and two¬ 
 pence per week, being less than the rate of the original 
 wages. This was held to be a dissolution of the original 
 hiring, and the making of a new agreement; and the 
 court was also of opinion, that the parting at the end of 
 the original year, and receiving wages for forty-eight 
 weeks, proved that the second hiring was not for a 
 year. (2) . 
 
 The fourth circumstance necessary to render the con- Exceptive 
 tract of hiring sufficient for the purpose of gaining a set- hir5n s s * 
 tlement is, that it contains no special exception to exempt 
 the servant from the controul and authority of his master, 
 at specified periods. These may be denominated excep¬ 
 tive hirings: this rule depends upon the principle 
 already discussed, that the agreement should be for a 
 complete year’s service. If particular times of the year 
 are excepted, and the servant is left to his own disposal, 
 
 (1) Rex v. Dedham, Burr, S, C. (a) Rex v. Wintersett, Cald. 291. 
 
 S 3 * * 
 
 SO 
 
336 Of Settlement by Hiring and Service. 
 
 so that the master cannot exercise any degree of autho¬ 
 rity over him, the service is just as much short of a year, 
 by the sum total of these exceptions, as if the time con¬ 
 tracted for had been less by an equal portion of con¬ 
 nected time: the only difference is, that one is so much 
 less by a space intersected with intervals of service, and 
 
 the other by one equal in extent, but occurring alto¬ 
 gether. (i) 
 
 hycnmraa Whether these reservations are made of particular 
 
 t°he P i?w° d3 SeaS ° ns? or c * ays ’ or even hours fbe day, the servant 
 I!. S ams no set tlement by service under a contract infected 
 cept. with this exception. Neither does it make any dis¬ 
 tinction, that periods are excepted, which the law would 
 except, without reservation, so as not only to excuse the 
 servant from labour, but to punish him if he worked 
 during the time. A servant is not compellable, when 
 hired m a particular trade, to work at unseasonable 
 hours of the night, and he is punishable if he profanes 
 the sabbath-day; but an express exception in the hiring, 
 even of these seasons, will defeat a settlement; for the 
 right of compelling the servant to work, is not the sole 
 power which the master possesses over him. In exacting 
 labour from his servant, he is subject to the general law 
 of the land, or possibly to the particular custom of the 
 place in which the service is performed (2); but with 
 this exception, a right of controul and authority, at 
 least so far as relates to the general discipline and go¬ 
 vernment of the servant, must reside in the master 
 at all times during the continuance of the service. (o) 
 
 (1) It seems as if the exception 
 roust be made ou behalf of the servant, 
 the master having, at ail times, legal 
 power of dispensing with the service 
 of his servant, and the cases are all of 
 this kind. See the opinion of Ash- 
 
 mn st, J. Rex Sulgrave, 2 Term 
 Rep. 376. post. 
 
 (2) See Rex -u. Birmingham, DougL 
 33 3 - Per Lord Ellenborough, C. J. 
 Rex v. Honvick, 10 East, 490. 
 
 (3) Per Foster, J. R ex Wring- 
 ton, Burr, S. C. 280. 
 
 14 
 
 Thus 
 
Of the Contract of Hiring. ^37 
 
 Thus an luring of a bastard eight years old, with his Exception 
 mother’s consent, to work in a silk mill for three years f f panicular 
 at weekly wages, without diet or lodging; the sendee to day. 
 be only eleven hours in the six working days, and all the 
 rest ot the time, as well as on Sundays, the servant to be 
 at his own liberty, and his own master (i); an hiring of 
 a minor, by agreement in writing, with a clothier for five 
 years, to be taught the business of a sheerman, « to re- 
 
 “ ceive wee % w «ges, and work sheerman’s hours, and 
 “ to be at his own liberty at all other times (2);” or, 
 
 “ fol ‘ five yea^ at weekly wages, as a colt sheerman, 
 
 “ t0 W0l k twelve hours each day (3);” are exceptions in 
 the contract, which prevent the parties from standing in 
 the relation of master and servant, but on certain days 
 
 and for particular hours of the day; wherefore the ser- 
 rant gains no settlement. 
 
 So where a servant agreed by covenant to work and Exception 
 serve as an artificer, in the art of a glass-grinder, or any vyhere ser ~ 
 other art his master should think proper to employ him in workeddur. 
 for seven years; and that he would not work for any ^ s b except ‘ 
 other person, but “ would continue and be in the service * ^ 
 nom six o clock in the morning till seven in the even- 
 “ in g of each during the said term, including half 
 Ci an hour at breakfast, and one hour at dinner times. 
 
 “ exce P t on Sundays, if in proper health.” This is a 
 covenant to serve only thirteen hours on working days, 
 and to be his own master on Sundays; for the expression 
 of so many hours is the exclusion of the rest, and there¬ 
 fore no settlement can be gained by service under it (4), 
 
 And it was thought to make no difference, “ that the 
 “ ^ rvant occasionally worked in the night-time, and 
 “ °* ten wenton errands for his master on Sundays;” for 
 where the contract is explicit, it is not how much the 
 
 (1) Re:-: Macclesfield, Burr. S. C. 
 
 45 3 - 
 
 (2) Rex v. BucBand Denham, 
 Burr. S. C. 694. 
 
 TttL. I. 
 
 (3) Rex v. North Nibley, 5 Term 
 Rep. zt. 
 
 (4) Rex Kings witifbrd, 4 Term 
 
 Rep. zu) 
 
 servant 
 
 / 
 
33» 
 
 An agree¬ 
 ment to de¬ 
 duct wages, 
 no excep¬ 
 tion. 
 
 Exeeptions 
 of days at 
 particular 
 seasons. 
 
 Of Settlement by Hiring and Service . 
 
 servant actually does, but what he has agreed to do, that 
 is to be considered. (i) 
 
 But where there is no express exception of time in the 
 contract, a mere agreement to deduct wages for a possible 
 loss of time does not vitiate the hiring; for it is rather 
 settling a rate of wages, and leaving the extent of service in 
 the master’s discretion, than an exemption of the servant 
 from his master’s authority, and is like the cases where 
 the payment was to be for spinning by the stone (2); or 
 “lor screws by the gross, good earn good hire (3).” 
 T. hus where one clubbed or agreed to serve another for 
 three years at weekly wages, to learn the trade of a brick- 
 layer, and do any other work his master was to set him 
 about, 4 * and if prevented at any time from working by 
 4 * badness of weather, illness, or from his master’s not 
 “ having employment for him, a proportionable deduc- 
 <c tion was to be made from his week’s wages for such 
 u loss of timeit is a good hiring, and a year’s service 
 under it will gain a settlement, though occasional deduc¬ 
 tions were made on these accounts (4). In this case the 
 possible exemption from employment was not left to the 
 servant’s option, but was made to depend on circum¬ 
 stances over which he had no controul. 
 
 If the exception of part of the day vitiates the contract, 
 an exception of a particular season or number of days 
 must do it more decisively. Thus an hiring from Michael¬ 
 mas to Michaelmas, 44 with liberty to let himself for the 
 44 harvest months to any other person (5);” or from one 
 Harborough fair to another, being a year, 44 subject to a 
 44 liberty of being absent eleven or twelve days in the 
 44 sheep-shearing season, and to have the benefit of what 
 
 (r) Rex v. Kingsvvinford, 4 Term 
 Rep. 219. 
 
 (2) Rex King’s Norton, Butr. 
 S. C. 152. 
 
 (3) Rex v. Birmingham, Doug!. 
 333- 
 
 (4) Rex v. Martham, I East, 239. 
 (5 ) Rex v. Bishop’s Hatfield, Burr. 
 
 S. C. 439, 
 
 44 lie 
 
Of the Contract cf Hiring, 
 
 he got during that time(r);” or an exception of two 
 f ays in each half year, (the servant being a pensioner in 
 haSt Indla company,) to go and receive his pen- 
 f 0 'V 2); are not s,lffi cen t hirings, not being for a year, 
 hut for a period short of it by the time excepted in the 
 agreement. As is also a contract of hiring for four years, 
 w,th liberty for the servant to leave for a week'every 
 year to see his friends; for the master had no dominion 
 over the servant for any one entire year. (3) 
 
 Tvvo cases foye however been adjudged, in which it 
 
 has been held that an exception in the contract does not 
 er it so efective as to prevent a settlement. A pan- 
 per was hired for a year, but at the time of hiring told 
 
 I"' 81 '' 68 "’ “ thathe was the militia, and he might be 
 « “ ° Ut * month m the year to attend in that duty, and 
 « 1 0l f d PVJ " *» to serve in his place , or else -maid 
 
 « ™° ke l " mi allcK3an ^ out of hh wages for the time he 
 was- absent (4).” Also where a man being hired for a 
 year, Ins wages to be paid weekly, told his master that 
 „ bem f a balloted man in the militia, he should be ab- 
 
 „ S6nt f ° r tbe month > and « Ueu of that month, should 
 serve another at the end of the yearU).” These 
 
 hirings were held good, and the following distinctions 
 
 ’"l | de ( be . t ", Cen * hem ’ and *0 preceding cases, as I have 
 collected them from the report. 1. This is not a chasm 
 
 m ie contract, but a dispensation with the personal ser¬ 
 vice. 2. It was not an absolute exception of a month; 
 
 ere was an alternative, as it might happen that the ser- 
 vant should not be called out. 3. The agreement as to 
 e absence for a month in the militia, was only what 
 would have been implied, and what the master must have 
 consente to, as the law would have compelled the ab¬ 
 sence, and the exception was not of time, which it was in 
 
 -j,j 1 ' X D u rr. S. C. (4) Rex v, Westptleieh, Burr. S. C. 
 
 7 Si- 
 
 ( 2 ) Rex v. Over, i East, coo. , 
 
 r ,\ D D . , \5) v, Winchcombe. Doucj. 
 
 ( 3 ) Rex v.Rusholme, io East, 2 i S . 39 j. ' 
 
34 ° Qf Settlement by Hiring and Service . 
 
 the option of either to dispense with (i). 4. The court 
 
 ought to lean in favour of settlements, and the bad con¬ 
 sequences would be very extensive, if they were to deter-, 
 mine that a man should lose his settlement by serving his 
 country in the militia. 
 
 Liberty of On the other hand a pauper was hired for a year as 
 » shepherd, to receive weekly wages, with liberty to be 
 fit personae, absent during the sheep-shearing season, but to find a 
 fit man at his own expence, to do his work during ab¬ 
 sence, his own wages to go on during that time. He 
 continued his year, but was absent during the sheep¬ 
 shearing season, when he employed a person to attend 
 die flock, and occasionally returned, giving directions 
 to the person he employed, and assisting in managing it. 
 especially on Sundays. He gained no settlement. For 
 there was an exception in the original contract, and he 
 ^ as tiot to D6 under his master’s control and command 
 for die whom year. It was no part of his engagement 
 tnat he should come backward and forward during the 
 sheep-shearing season. (2) 
 
 Distinction But a distinction is to be carefully observed between 
 
 ceptions and actua ^ exceptions from service in the original contract 
 omissions, and the servant’s omitting to work during the continuance 
 of his agreement. Whether this be in consequence of 
 a general lawful exemption from labour, such as on days 
 set apart for sacred purposes ; or by the usage of particu- 
 lai districtsj or by his master’s previous permission; or 
 even by the neglect or disobedience of the servant, it will 
 not prevent a settlement, provided it be subsequently for- 
 gi.en by die master. Fnese are cases not ot exemptions 
 in the contract, but of dispensations with service, and 
 will be more fully considered under the next requisite for 
 gaining a settlement, namely, the year’s service. (3) 
 
 ^ (1) See the opinion of Lord Kenyon, 5 3 Geo. III. Maule & Selw. MSS. and 
 C. J. Rex v. Over, ante, 339. (4). post. 350. 
 
 (2) Rex v. Arlington, Trin. (3) Post. 348, &c. 
 
 IO 
 
 The 
 
Of the Year's Service* ; 0 ., 
 
 3.4 1 
 
 pauper was hired as a bleacher and crofter for a 
 year, at 12s. a week. He worked under it for a year. 
 
 In these works each bleacher is to get up a certain num¬ 
 ber of pieces in the week, the task being calculated at so 
 many pieces a day for six days, and if he finishes in less 
 time the remainder is his own. The pauper did so, and 
 went when he pleased on Sunday without asking his 
 master’s leave. He gained a settlement, for there is an 
 express hiring for a year and no express exception of any 
 pait of it. An exception cannot be implied from the 
 custom of the country, and much less from that of a par¬ 
 ticular house of manufacture* (i) 
 
 SECT. IV. — PART L 
 
 Of the Year's Se? 'vice. 
 
 Having treated of the contract of hiring for a year, 
 we are to consider next, what amounts to a performance, 
 and constitutes the year’s service within 8 & 9 W. IIL 8 a 9 w m 
 c. 30. which declares, that no servant shall gain a set- c, 3°- 
 tlement in any parish or township, “ unless he shall 
 continue and abide in the same service for the space of 
 one whole year*” 
 
 Service, therefore, which is but a day or two short of Service fot 
 a year, does not satisfy the statute, nor confer a settle- 365 days, 
 ment (2). But service for a year, consisting of 36c days, 
 is sufficient, although the agreement be for a longer pc- 
 
 n f?' A servant maid was hired from the moveable feast 
 of Whitsuntide to the Whitsuntide Mowing. Having 
 
 served more than 365 days, she was discharged for being 
 
 pregnant of a bastard child, a few days before the coming 
 
 of that following Whitsuntide to which she had agreed to 
 
 serve. This was adjudged to be a service for a year, 
 
 ■within the statute. (3) J 
 
 (I) Rex v Hcrivick, 10 East, 489. also Rex 
 
 (J) Per Lord Kenyoir, C. J. Rex Rep. 464. 
 ■V. Gramham, 3 Term Rep. 7J4 . see (3 ) Rex 
 
 Rep. 564. 
 
 2 3 
 
 Whittlebury, 
 
 v. L Ulverstone, 
 
 6 Term 
 
 7 Term 
 
 The 
 
34* 
 
 Of Settlement by Hiring and Service. 
 
 Service : The performance of service may be either actual , or 
 
 1. Actual, constructive . Where the servant continues personally to 
 
 fulfil the duties of his station towards his master in the 
 
 2. Con- terms of his contract, without intermission, it is actual 
 
 service. Where he .does not perform these duties, but 
 they are dispensed with, the service is constructive. 
 
 Origin of 
 dispensa¬ 
 tions with 
 consent. 
 
 Idleness, 
 
 It has been already seen, that the law invests the master 
 with authority to enforce performance of the servant’s 
 contract; but having gone thus far, it leaves him to exact 
 or remit the service as suits his convenience or discretion. 
 He may compel his servant to work at all lawful seasons, 
 or suffer him to remain unemployed. If he should prove 
 remiss and negligent, the master may punish remissness, 
 and enforce attention; but this idleness, whether per¬ 
 mitted or otherwise, has no effect on the settlement, 
 whilst he continues in the service, that being all which 
 the statute requires. 
 
 An omission of actual service is not confined to time, 
 when the servant actually resides with his master; he may 
 be occasionally absent altogether, neither employed in 
 his business, nor ready to be so if called upon. Here 
 the power of the master is not less (where exercised with¬ 
 out fraud) to dispense with personal attendance, and for¬ 
 give temporary absence, than it is to endure idleness or 
 overlook negligence while the servant resides on his farm, 
 or lives in his house. The necessity of leaving some¬ 
 what of discretionary indulgence to the head of the 
 family, and the impossibility of placing any bounds to it 
 short of fraud, require that this should be considered as 
 constructive service, sufficient to satisfy the statute. 
 
 The servant may be likewise absent for an excuseable 
 
 Dispense- J 
 
 xicns in law. cause, to which the master’s consent is not required; such 
 are illness, the master’s inability or refusal to let him serve 
 the remainder of the year. In such cases, the law does 
 not require the master’s consent, but looks upon the ser¬ 
 vice as constructively performed for the purpose of a set¬ 
 tlement, 
 
343 
 
 Of the Year's Service. 
 
 dement, provided the servant does not agree to dissolve 
 the contract. 
 
 Dispensations from service are therefore of two kinds; 
 i. Such as arise out of the master’s consent; 2. Such as 
 are created by operation of law. 
 
 Dispensations with the master’s consent, are also of Dispensa- 
 two kinds; i. Express, where his leave is asked and ob- consent: 
 tained; 2. Implied, or constructive, when, though not *• Ex P ress - 
 given in terms, it is to be inferred from the circumstances ** Implied ‘ 
 of the case. \ 
 
 But this power of assent exists only during the con¬ 
 tract’s continuance: if that is dissolved, and the servant 
 absents himself, the power to dispense is gone; for the 
 contract being at an end, the master has no right to com¬ 
 mand attendance, and consequently no authority to dis¬ 
 pense with it. The servant does not continue in service 
 for a whole year , but a chasm is created, which no return 
 nor subsequent act of the parties can cure. 
 
 A dissolution of the contract takes place two ways, Dissolutions; 
 i. By mutual consent of master and servant; 2. At the If B y con * 
 
 , . „ . sent. 
 
 desire or one oi them, through the intervention of ama- 2. Order of 
 gistrate, for some lawful cause. magistrate. 
 
 Dissolutions by mutual consent, like dispensations, may 1. Dissolu- 
 be either express or implied. In many cases where the tion by €on 
 master has consented m terns to the absence, it is difficult 
 to determine whether the contract is intended to be con¬ 
 tinued, or put an end to. Recourse must be had there¬ 
 fore to the various circumstances which attend the ser¬ 
 vant’s departure, or return, in order to explain these 
 equivocal expressions, in the same manner, as where the 
 parties are entirely silent, and all is left to inference and 
 conjecture. > 
 
 z 4 
 
 As 
 
344 Of Settlement by Hiring and Service, 
 
 As a settlement is always gained where the service is 
 dispensed with, and never where it is interrupted by ab¬ 
 sence under a dissolution of the agreement, it is usual to 
 consider questions of constructive service as depending 
 upon the fact of whether there has been a dispensation of 
 the service , or an absolute dissolution of the contract. If 
 this distinction be put as embracing all points that can 
 affect the question of a year’s service, it seems inaccurate. 
 There may be an absence which cannot be purged so as 
 to permit the time to countin the year’s service, although 
 no dissolution of the contract has taken place; and there 
 
 may be a dissolution, which works no discontinuance of 
 the service, (i) 
 
 Whei e die master’s consent is necessary, and not ex- 
 pi eoory given, it may be inferred from circumstances; but 
 tae tacts of a case may sometimes not only furnish no 
 ground for that inference, but may lead to a contrary con¬ 
 clusion, notwithstanding a continuance of the contract. 
 
 of absence. Absence from service therefore may, with reference to 
 settlements, be distinguished into three kinds; i. Under 
 a dispensation; 2. Under a dissolution; 3. Where the 
 contract continues, but the master’s consent cannot be 
 
 implied. In the first case a settlement is acquired; in the 
 two last it is defeated. 
 
 Whether absence is under a dispensation with service 
 or a dissolution of the contract, is a fact depending upon 
 the circumstances of each particular case as they appear 
 in evidence (2). It is a conclusion to be drawm therefore 
 by the justices (3); but the court of king’s bench wull lend 
 
 (x) See post. sect. iv. part 2. of 
 this chapter. 
 
 (2) Per Le Blanc, J. Rex w. Mil- 
 denhall, 12 East, 466. 
 
 ( 3 ) Rex 7;. St. Peter Mancroft, 8 
 Term Rep. 477. R ex Hardborn, 
 12 East, 51. Rex v. Mildenhall, ante, 
 
 POSt-345. 
 
 its 
 
345 
 
 Of ihe Year's Service* 
 
 its assistance to the magistrates to correct or confirm 
 their opinion. (i) - 
 
 tion. 
 
 The criterion to distinguish between the two cases is p.incipie of 
 now settled to be, whether the servant continues liable to ; J,slinctlon . 
 
 between dis¬ 
 serve for the whole year, though the master dispenses pensation 
 
 with the actual service for part of it. If he does, the ser- J nd dlssolu “ 
 vant gains a settlement, because the relation of master 
 and servant subsists all the year, and the master may re¬ 
 sume his right to the service whenever he chuses; but if 
 the master has once parted with his control over the ser¬ 
 vant, so that neither he nor the servant retain a power of 
 compelling subsequent performance of the contract, it is 
 dissolved, and no settlement is gained (2). This distinc¬ 
 tion does not seem to comprehend some of the more an¬ 
 cient cases, particularly where the consent was expressly 
 given (3). But in all recent decisions, the court have 
 
 abided by this rule, with the fixed purpose of laying down 
 a certain principle for determining all future cases in 
 which, either through consent of parties or other circum¬ 
 stances, the contract is to be considered as put an end to 
 before its regular termination by efflux of time. (4) 
 
 No distinction arises from absence taking place at the Absence in 
 beginning, in the middle, or at the end of the year (j). 
 
 There may be a constructive service, or a dissolution of >' ear ’ &c * 
 
 (1) Per Lord Kenyon, C. J. Rex 
 
 v. Whittlebury, 6 Ter n Rep. 464. 
 Per Lord Ellenborough,C J. Rex <v. 
 Corsham, 2 East, 303. There are 
 several other cases to the like effect. 
 But in Rex v. St. Marv Lambeth, 
 Lord Kenyon, C. J. expressed a wish 
 that the sessions would in future find 
 the fact whether or not the parties put 
 an end to t-he contract before the expi¬ 
 ration of the year, 8 Term Rep. 236. 
 and in Rex v. St. Peter’s Mancroft, 
 ante, 344. (3), the case was sent down 
 to be restated. 
 
 (2) Per Lord Kenyon, C. J. Rex 
 v. Thistleton, 6 Term Rep. 185. Rex w 
 St. Peter Mancroft. 8 Term Rep. 477. 
 Rex a/. Maidstone, 12 Ea.-t, 550. 
 
 (3) See post. 347. e t se«j. 
 
 (4) Rex v. Rushall, 7 East, 471, 
 Rex d. Tollishunt Knights, ante, 
 333 * ( J )» an< f several other cases;post.* 
 
 (5) Per Lord Kenyon, C. J. R ex 
 East Shefford, 4 Term Rep. £04. 
 
 Per Lord Mansfield, Rex Winter- 
 
 sett, C aid. 397* And see the several 
 
 cases, pest. 
 
 the 
 
I. Of dis¬ 
 pensation?, 
 i. Express 
 leave. 
 
 346 Of Settlement by Hiring and Service. 
 
 the contract, in each of these cases, according to the 
 difference of circumstance in other respects. 
 
 heie tne leave of absence is expressly given before 
 
 the service begins, the oniy questions that can arise are ; 
 
 whether the parties intended that the contract of hiring 
 
 should commence previous to the actual commencement 
 
 ot the service ; or if the agreement does in fact compre- 
 
 lend the period of cessation from service, whether this 
 
 time of absence which the servant is allowed does not 
 
 amount to an exception in the contract. If the leave be 
 
 given afterwards, the point is to distinguish it from a 
 dissolution. 
 
 SLt™ ' Th< ; first is sometimes (although very seldom) clear 
 to go into n ora the terms used by the parties. As where the pauper 
 
 wXs'jr, ^ a \ hired on the Friday before Michaelmas-day, from 
 after. Michaelmas old style, for a year to a farmer, to be his 
 carter, and had one shilling earnest, and was to have six 
 pounds wages, and to go into his master’s service the 
 Wednesday after Michaelmas-day old style. Per Lord 
 Mansfield : It is expressly stated, that on Friday befor e 
 M mhaelmas-day the paupe r was hired for a year from 
 MichaelmasiT!s there expressly It a ted, tba't they stood 
 m the relation of master and servant from Michaelmas 
 to Michaelmas; if so, it would be repugnant to say, that 
 this was not an hiring for a year. The case itself con¬ 
 tradicts the idea that it was an hiring from Wednesday 
 after Michaelmas. Then the absence was matter of in¬ 
 dulgence on the part of the master, and whether revoca¬ 
 ble or not, is so common in these transactions, and so 
 reasonable upon the commencement of a service, that it 
 has never been considered as impeaching o r affecting th e 
 validit y of a con tract. But under all the circumstances 
 
 0 1 ns case » .Consider it as an indulgence, which the 
 master might revoke. ( 1 ) 
 
 (1) Rex v. Ci endcn Underwood, C aid. 339. 
 
 As 
 
 / 
 
Of the Year's Service. 347 
 
 As the language in which parties express their mean¬ 
 ing is usually obscure and diversified, recourse must be 
 had to the different circumstances of each case to inter¬ 
 pret their contract. There is no particular class of cases 
 which depends upon any set form of expression. 
 
 The various decisions, therefore, upon this very per¬ 
 plexed head of settlement law, may be better arranged 
 by a reference to other circumstances which admit of a 
 more natural analogy (1); but it must be observed, that 
 the language of the parties does of necessity constitute 
 the leading means to ascertain the effect of every agree¬ 
 ment. 
 
 The most simple cases of implied consent are where Consent im~ 
 nothing appears but the absence and return of the ser- P Iied b y re - 
 vant; tor although the absence is without leave, it is service, 
 cured by the servant’s coming back, and the master’s 
 receiving him into his service, unless it appears that the 
 contract has been actually dissolved. •. 
 
 1 
 
 111 - ni - » 
 
 1 
 
 Thus w \\rro p zovA'-nn t vyp q hired fro m Mi rhftOimas to Absence ml 
 Michaelmas, he came three days after the first Michael- the he S>^ (( J 
 mas, and stayed one day after the latter, and was absent n f 
 at different times near a fortnight, for which 'an abate¬ 
 ment was made in his wages; it w r as held that he gained 
 a settlement by serving the remainder of the year, for the, 
 absence was purged by the master’s receiving him. (2) 
 
 (1) The judges have often declared 
 that it is difficult to discover the prin- 
 ciplii of several cases upon 
 
 this subject; and the writer is compel¬ 
 led to confess, that his own incapacity 
 for the task he has undertaken, never 
 strikes him so forcibly, as when he con* 
 
 ni. • ! 
 
 siders his utter inability to arrange 
 these decisions into a connected system 
 by the means of leading principles. 
 
 (2) Rex v. Hanb'jry, Burr. S. C. 
 322. See also”Rex v, Maddineton, 
 Burr. S. C. 675. 
 
34 « 
 
 In the mid¬ 
 dle. 
 
 Of Settlement by Hiring and Service . 
 
 So where the servant went during his year, without 
 
 eave, to see his mother, and stayed away four days, and 
 
 then returned into the service; it was adjudged that the 
 
 master dispensed with the attendance by taking him 
 again, (i) J 1 
 
 Neither does it make any difference that the absence is 
 pas y with the master’s leave, and partly without. As 
 
 vanT'th r -ZZ liUle t0 d °’ a Z teed with M* ser - 
 vant that he might have leave of absence for six weeks to 
 
 k foi himself, wherever he pleased, allowing fifteen 
 
 s ailings out of his yearly wages; he was absent seven 
 
 ^ weeks, being a week more than he had leave for, and then 
 
 --^^reeeivedithisabseneedidnotprevent 
 
 s- 
 
 beginning. Wnere *e absence has been at the commencement of 
 
 6 the court see m rather to have leaned towards 
 construing the conversation between the parties into a 
 leave of absence, than an exception in the contract. 
 
 As where on Thursday before Michaelmas-day, which 
 happened on Saturday, the pauper agreed with a farmer 
 as carter, to go into his service on the Monday following, 
 
 tin ® ensuln g Michaelmas, for six guineas. At the 
 time of the agreement, his master desired him to go into 
 hts service before Monday: but the servant said ifwould 
 
 ZZ Z " h , e , ^ th6n “ sery ice; and the master 
 
 ij d ’v i he W0u d Come 0,1 the Monday mornimr he 
 would shift till that time. The service in which the pau¬ 
 per was at the time of making this agreement expired on 
 
 R« i R e“ b7; s tZ rl" Z “ ,o be tb * “ 
 
 «-aion, isurr. »s.C. 47. The taking him again 
 
 servant was absent three weeks in the (z) Rex® iv ,1. 
 
 middj e of tbe year, without content, Rep. 387 
 
 Hiring from 
 Saturday. 
 Master 
 desired pau¬ 
 per to go in¬ 
 to service 
 heforeMon- 
 day, &c. 
 
 the 
 
' V ,* 
 
 Of the Year's Service . 
 
 the ensuing Saturday, being Michaelmas-day; he left it 
 on that night, and went into his new' master’s service on 
 the Monday following, as agreed upon. He served till 
 the day before the ensuing Michaelmas, when he desired 
 leave to go and see his relations, before he went into 
 another service: his master deducted one shilling from 
 his wages for that day, and paid him the residue. The 
 master, on his going away, told him, that if he went be¬ 
 fore Michaelmas-day, there might be a dispute about his 
 settlement, and desired him to come back; but he went 
 away and returned no more. 
 
 Two questions arose upon this case. First, whether 
 this was a good hiring for a year ? Secondly, whether 
 there was a sufficient service, the servant being absent the 
 first and last day ? The court were of opinion, upon the 
 first point, that the sessions ought to draw the conclusion 
 that this was an hiring for a year, “ else why should the 
 64 master desire him to go into his service before Monday, 
 44 or say that he would shift till that time ?” It appears 
 from this, that the master understood it to be an hiring 
 for a year; and likewise from his desiring the pauper to 
 come back, lest his settlement should be disputed if he 
 quitted the service before Michaelmas-day. They were 
 also of opinion upon the second, that there was a year’s 
 service, the servant having had leave of absence for the 
 first and last day. (i) 
 
 Neither will the length of absence prevent the settle¬ 
 ment; the law is the same, whether it be for three days, 
 or so many months. 
 
 A servant hired for a year ran away after serving eight 
 weeks; he was absent for thirteen weeks, working with 
 «4id receiving wages from another person, when his mas- 
 
 (i) Rex*z/. Bray,Burr. S,C,6Sz. 
 
 ter 
 
 349 
 
 & 
 
 Absence 
 first and last 
 day. 
 
 Length of 
 absence im¬ 
 material. 
 
 Absence 
 
 weeks. 
 
35° 
 
 Of Settlement by Hiring and Service. 
 
 ter apprehended him by a •warrant, but in his way to a 
 justice, asked whether he would come back to his place, or 
 go to a prison ? and if he would come back and go on in 
 his place as he ought to do, he might. He said he would 
 come back; and his master asked him then, what he 
 would be willing to abate for the time he had been absent? 
 He said he thought a shilling a week would not hurt him, 
 which was agreed to. He served the remainder of the 
 year, and received all his wages but the thirteen shillings 
 agreed to be deducted. The court were of opinion, that 
 the length of the absence was immaterial; as was also the 
 period of the service at which it took place. The only 
 question was, whether the pauper’s service was performed 
 under the old, or under a new contract; but there was 
 no pretence to say he entered into a new contract, the 
 master’s object in apprehending him by a warrant being 
 to compel him to complete his service under the old. (i) 
 
 day'of'yean But wIl ere absence continues during the last days of the 
 year, the master’s permission cannot be implied from a 
 1 subsequent return to the service; it is more difficult there¬ 
 of j ore to determine in these cases, how far the absence is 
 
 by reason of a dispensation, or after a dissolution of the 
 ielation which existed between them. 
 
 ^ttefano. f* 6 first decisions in favour of dispensations at the 
 ther in his end ol the service, it was evident that the relation of 
 
 master and servant was not determined by the absence. 
 
 Where the servant asks leave to go, and puts another in 
 
 ins place to perform those duties, which he must otherwise 
 
 have done, and the master assents upon that condition, 
 
 they acknowledge th<5 continuance of their contract, by 
 
 tie terms under which they dispense with its personal 
 execution. ( 2 ) 
 
 (1) Rex "v, East Shefford, 4 Term 
 Rep. 804. See also Rex v. Gran¬ 
 tham; ah absence of 13 weeks, with 
 the mastetfs consent, 3 Term Rep. 
 754- 
 
 (2) But see the distinction where 
 it is made an exception in the original 
 agreement, Rex v. Arlington, ante, 
 340- 
 
 12 
 
 Thus 
 
Of the Year's Service. 351 
 
 1 f 
 
 Thus a servant hired for a year, served until within 
 three weeks of the end of it, when he asked his master’s 
 leave to go to the herring fishery; the master consented, 
 if he could get a man in his place to do his work to the 
 master’s liking. The servant procured such a substitute, 
 whom he agreed with and paid; he received part of his 
 wages when going, and the remainder for the whole year 
 on his return, which was three weeks after the expiration 
 of his year. It was held that there was no dissolution of 
 the contract, but a constructive service under it. (1) 
 
 * r ~ r j 
 
 So if the servant works with another, with his master’s 
 consent, to 'whom .he makes a compensation , and is hound to 
 return when called upon , it is in fact nothing more than 
 leave givenoythe original master to work with some one 
 else, and is substantially service done with the former. 
 
 As where a servant, five weeks before the expiration of 
 the year, went with his mistress’s leave to work with one 
 L. in a different parish, and received his year’s wages after 
 the expiration of the year, when he voluntarily deducted 
 the amount of the money he had earned during his ab¬ 
 sence; and it was further found, that if his mistress had 
 required him to return during the five weeks, he would 
 have done so. The contract subsisted, and the service 
 was dispensed with ; for the servant paid the mistress, or 
 what is the same thing, voluntarily deducted from the 
 wages his mistress owed him, what he had earned during 
 his absence, and would have returned during the five 
 weeks, it she had required it. This therefore was ser- 
 * vice done for her, since if the contract had been dissolved, 
 the servant would not have returned, and the sum de¬ 
 ducted should not have been the amount of his earning, 
 but a part of his year’s wages proportioned to the time of 
 his absence. (2) 
 
 (l) R ex v. Goadaeston, Barr. S. C. (2) Rex Nether Heyford, Burr- 
 2 5 1 ’ S. C. 479. 
 
 It 
 
 Absence, 
 
 making 
 
 compensa¬ 
 
 tion. 
 
I 
 
 352 
 
 Of Settlement hy Hiring and Service. 
 
 It seems also to make no difference, that the pauper is 
 not bound to return within the period of absence, provided 
 the parties clearly acknowledge the continuance of the 
 contract, by giving a licence to depart, and receiving a 
 recompence for that time. The pauper was hired to Ann 
 Tyler to serve for a year, at which time he told her, that 
 he was in the militia, and might he abse?it about a month 
 m the year to attend in that duty; and at the same time 
 he told her, that he would pay a man to serve in his place, 
 or else would make her an allowance in his wages for the 
 time he was absent. Haying served till May, he then 
 joined the militia for thirty days, and afterwards returned 
 to his service, and continued until the end of the year, 
 and then made his mistress an abatement of eight shillings 
 of his wages, for the time he was absent. The court 
 Were of opinion, that the year’s service was completed, 
 
 “ In the present case the man is hired for a year, to serve 
 for a year, but mentions an event that might happen, of 
 his being called out to attend his militia duty; and told 
 his mistress that if it should so happen, he would either 
 pay a man to serve in his place, or make an allowance - 
 out of his wages.” -This is not a chasm in the contract‘d 
 but a dispensation with the personal service. It was at 
 the election of the mistress, either to dispense with his* 
 attendance, and have a substitute, or to have an abate¬ 
 ment out of his wages, and she preferred the latter. (1) 
 
 So where a yearly servant served the last half year with 
 the assignee of his master’s stock and farm,, there being no 
 conversation about dissolving the contract with the old, 
 and no fresh contract with the new master (2): anti where 
 a servant, with his master’s consent, worked with different 
 masters, receiving their wages, and making an allowance 
 to his original master out of the wages payable by him, 
 jn the same proportion as the time of his absence bore to 
 
 (1) Rex Westerltigh, Burr. S. C. (2) Rex r. Ivinghoa, 1 Str, jo. 
 
 753 ' 339 ' 
 
 his 
 
Of the Year's Service . ;' ' ' 35 $ 
 
 his entire year (i). These absences were held to be dis¬ 
 pensed with, and the service virtually-performed to the 
 first master. (2) 
 
 And where the master’s consent appears to have been When mas- 
 asked, and given, and nothing more, it is to be intended 
 that the absence is m consequence of a dispensation, and nothing 
 not of a dissolution. As where a yearly servant, three p 0 « e * 
 days before the expiration of his year, went to his father’s, 
 with his master’s consent, and whilst he continued there, 
 his year’s service expired; after which he went to receive 
 his wages, when his master deducted for a former ab¬ 
 sence, but not for the latter. It was deemed a good con¬ 
 structive service. (3) 
 
 So also a dispensation has been inferred from circum¬ 
 stances, although the master seemed to have parted with 
 his power of controul for the remainder of the year. (4) 
 
 As where the pauper was hired in February till the 
 old Michaelmas following, and served accordingly. On 
 the Friday before old Michaelmas, his master asked him 
 if he would stay again; the pauper said he would, if they 
 could agree about wages, and asked five guineas, which 
 the master thought too much. The pauper immediately 
 set out to go to a statute, and having gone about ten 
 yards, returned for something he had forgotten. He then 
 met his master, who said he would give him five guineas, 
 and gave him one shilling earnest. The master, while he 
 was putting his hand in his pocket for the shilling, said, 
 <£ You shall go away a fortnight at Michaelmas, because of 
 your settlement; I will give you that” fortnight to get 
 * £ what y6u canto which the pauper then agreed. The 
 pauper accordingly went and stayed a fortnight at his 
 
 Leave of ab¬ 
 sence for a 
 fortnight at 
 the end of a 
 year to get 
 what he can. 
 
 ■ > - *43 
 
 ** f'r 
 
 
 (1) Rex i'. Beetles, Burr. S. C. (3) Rex f. Ur^pptfbeckrj Term 
 2 3 °‘ Rep. 387. See post. sect. v. 
 
 (4) Rex v. Undermiibeck,5Term (4) But see ante, 34c. 
 
 Rep. 387. - ’■ ‘ ' •’ ' - - 4' * 
 
 VOJ " *• a a father’s 
 
354 
 
 Of Settlement by Hiring and Service* 
 
 tathei s, during which time he worked for another person* 
 digging sand at one shilling per day. At the end of the 
 fortnight he returned Vo his master, and continued to 
 serve him till Lady-day, and until his master died, soon 
 after; he then received his wages from a relation of his 
 mistress, and believes that nothing was deducted for the 
 fortnight; but he does not remember what sum he re¬ 
 ceived. The pauper apprehended that his master would 
 not have hired him, if he had not agreed to go away for 
 the fortnight. AshhurstJ. “ The rule established in these 
 kind of cases is this: "when there is a bond fide excep¬ 
 tion of part of the time, at the time of the hiring, that is 
 not an hiring for a year; but if there be no exception, at 
 the time of making the^original contract, then a permis¬ 
 sive absence is considered as a dispensation of part of the 
 sei vice by the master; and it does not operate in the same 
 way as an exemption out of the original contract, which 
 defeats the settlement. And the question whether it be 
 one 01 the other must depend on the particular circum¬ 
 stances of each case. In this case there was a complete 
 fhi a year at the time. The parties having dis¬ 
 agreed on the terms proposed, the pauper went away •; 
 but on his return, his master said he would give him the 
 tive guineas, which he agreed to accept, and gave him 
 one shilling earnest. It is likewise stated, that while the 
 master was putting his hand into his pocket, he told the 
 pauper he should go away for a fortnight; but the con¬ 
 tract was complete before that time, and what passed af¬ 
 terwards can only be considered as a dispensation with 
 the ser\ice; for at that time the master had a complete 
 right to his service for a year, and the pauper had agreed 
 to serve him for that time, and the one shilling earnest 
 was to bind the agreement for a year for the five guineas; 
 otherwise it appears to be giving the servant more than 
 he originally asked for the whole year, for serving him 
 foi a shorter period. If then the contract w r ere complete 
 before any thing was said relative to the fortnight’s ab- 
 * 6 
 
 ■ w sence. 
 
3 55 
 
 Of the Year's Service. 
 
 scnce, this was a dispensation with the service, and not 
 an exception out of the original contract. An exception 
 is a stipulation on the part of the person for whose benefit 
 it is introduced; but here it was not made on the request 
 ot the servant, but on the offer of the master; and it ap¬ 
 pears that he said it was for the express purpose of pre¬ 
 venting the pauper’s gaining a settlement. That is not 
 such a reason as the court would give much countenance 
 to; whether indeed the sessions might not have deter¬ 
 mined this on the ground of fraud, was for their consi¬ 
 deration ; as it is, there is no occasion to go into that 
 ground, as we are of opinion that this was a dispensation 
 with the service : with respect to the servant’s apprehen¬ 
 sion, which is stated in the case, that cannot vary the 
 question; we are to decide on the terms of the contract, 
 and not on the apprehension of the pauper.”—Buller and 
 Grose J. same opinion. (i) 
 
 The next class of cases, in which the court has inclined 
 to infer a dispensation, is where the absence takes place 
 solely on the master’s account, and at his request. Here 
 it originates with him in whom the power of dispensation 
 is vested, and is only acquiesced in by the servant; the 
 contract is therefore supposed to continue notwithstand¬ 
 ing absence, unless it appears by other circumstances to 
 have been dissolved by the express consent of both parties. 
 
 Absence or 
 the master’s 
 account and 
 request. 
 Post. 
 
 A footman, whose year would expire the thirtieth of 
 October, married a fellow-servant on the fourth of Sep¬ 
 tember preceding; she had previously given a month’s 
 Warning to quit, and was to have left her place in Sep¬ 
 tember, but was desired by her master to stay till the 
 seventeenth of October, which she did; when the master 
 said to tire husband, he supposed as his wife was going 
 away, he would like to do so too. The husband replied, 
 he would like it better, if it was agreeable to his master. 
 
 (i)-Re* Sulgrave, % Term Re P . 376^ and see Rex v. MiUenhal!, 
 East, 48*. post. • 
 
 A A 2 
 
0 / Settlement by Hiving, cnid Service* 
 
 His master said he had no objection, as he had another 
 footman coming, and would pay him his whole year’s 
 wages, which he accordingly did on the. 17th, in full to 
 tnc thirtieth. The husband and wife left the service on 
 the seventeenth, and the new footman came on the same 
 mght into his place. It was held that this was a dispen¬ 
 sation with the service from the seventeenth to the thir¬ 
 tieth ; the master voluntarily giving him leave of absence 
 for the last thirteen days, and of his own accord offering 
 
 and paying him the whole year’s wages, is proof of his 
 consent. (1) 
 
 v . - «* "f v V c 4 v 
 
 -the pauper being hired for a year, her master, who 
 when she was hired, lived in London, purchased a manu¬ 
 factory in Manchester two months before the expiration 
 oi nee year. He then told all his servants that he was 
 going to leside at Manchester, but did not mention any 
 time, and that they might look out for other services if they 
 chose, or might stay with him till he went. The pauper 'did 
 not look out for any other service, but continued with 
 her master until within seven days of the expiration of 
 hei yeai ; on the evening of which day, her master paid, 
 her the whole year's wages , and gave her half a guinea over , 
 and went to Manchester the same evening. He did not 
 know that morning that he should go in the evening, or 
 before the expiration of the year’s service; it depended 
 upon circumstances, which he could not at that time fore¬ 
 see ; but if he had remained, he would have continued 
 the pauper in his service, and she went into a new one 
 two days after her master left London. Lord Mansfield 
 C. J. “ The only question is, whether the servant con¬ 
 tinued bona fide in her service during the whole year. 
 There is a distinction between exceptions from the con¬ 
 tract and dispensations of the service; but if the case be 
 of the latter description, and bondfde , it can make no 
 
 (0 Rex v. Richmond, Burr. S. C. 740. 
 
 difference 
 
Of the Yeads Service. - 
 
 25 
 
 difference when the servant is engaged, or where, or 
 whether the service be in the same, or in another occu¬ 
 pation. Why then does she quit the service : at the de¬ 
 sire and for the convenience oj her master, who gave her half 
 a guinea beyond her wages, as an equivalent no doubt for her 
 board: it was accidental, and a favour to the master. The 
 case of Rex v. Richmond (i) is full as strong as this, 
 for there a new servant came into the very place which 
 the pauper had vacated upon a dispensation of hi§ service. 
 
 Fraud vitiates every thing, but the justice and reason of 
 the thing are here with the settlement. Suppose she had 
 come from a distant country, and had no other settle¬ 
 ment, shall she lose her only one, which she deserves so 
 well ?’ (2) 
 
 • 7lO.'to©i 
 
 These seem to be the two strongest cases on the subject; 
 and in the first it was not considered as making any dis¬ 
 tinction, that the master hired another servant in the 
 footman's place; nor in the second, that the servant 
 hired himself into a new place, two days before the ex¬ 
 piration of the year. In this last, the servant had put 
 it out of her power to return to the service of her origi¬ 
 nal master, if he should have required it of her, by 
 entering into a relation incompatible with it; so that it 
 seems to resemble the cases already mentioned, where the 
 servant worked with another master, with consent of the 
 first. (3) 
 
 t.r ' .. V-, > ' 
 
 The next class of cases of constructive service, are such Service by 
 as arise by operation or inference of law. Here absence °P emiou of 
 
 law. 
 
 (1) Ante, 356. n. (1). are at least to be regarded only as 
 
 (2) Rex v. St.Bartholomew, Corn- authorities in cases which precisely 
 
 hill, Cald. 48.- correspond withthem in circumstances. 
 
 (3) 1 * seems, however, from the See the opinion of Lord Kenyon, C.J, 
 current of recent decisions, that these Rex -v. St. Mary Lambeth, 8 Term 
 determinations, and possibly some Rep. 236. 
 ethers (if not absolutely over-ruled), 
 
 A A 3 
 
 or 
 
Of Settlement by.Hiring and Service. 
 
 or non-performance of work is excused in the sen-ant, 
 for some reason admitted by the law itself, without con¬ 
 sent from the master. • In requiring a compleat year’s 
 service, the statute meant no more than that the servant 
 should pay such attention to his duty as the law would 
 
 compel. Sen-ice for that time must therefore confer a 
 settlement. 
 
 all lawful* Thus if a servant is hir ed by the year, to work as a weaver 
 
 times. or carpenter, at yearly wages; his master cannot compel 
 him to work on Sundays, and he will be held to have 
 served a year, notwithstanding that absence from labour, 
 which is in obedience to law. (i) 
 
 •According 
 to the cus¬ 
 tom of the 
 country. 
 
 
 If there be any cases also, where a servant cannot be 
 compelled by his master to labour during the accustomed 
 . working time of_the_week,J)y.i S asojjjo.fihe.usage of ABar - 
 ticular place, they are to be classed under this head of dis¬ 
 pensation. As where a pauper was hired for a year, at 
 yeai ly w ageo, to woi k at stamp mills used for the purpose 
 of cleansing and manufacturing tin, and worked therein 
 daily, except holidays and Sundays, according to the 
 Custom of tinners; this is no exception in the contract, 
 
 but a sufficient service, being according to the custom of 
 the country. (2) 
 
 So where a servant was hired by a wood-screw-maker 
 for a year, “ good earn, good hire,” to work for him and 
 no other master, to make screws at so much a gross. By 
 good earn, good hire, is meant that his wages were to de¬ 
 pend upon his work; he was to have nothing, if he got 
 nothing. The servant absented himself without leave for 
 a week or a fortnight at a time, to drink or play. His 
 master, on his return, was angry and checked him, but 
 
 (1) Per Willes, J. R ex y. Bir¬ 
 mingham , post. 359. n . (1). 
 
 t -t * ♦* '• .« ■ 
 
 (2) Rex v, St. Agnes, 2 Bott, 322. 
 PI. 362. 
 
 always 
 
Of the Year's Service. 
 
 359 
 
 the servant. 
 
 <tlv:ays received him again. It was held that a settlement 
 was gained by such service for a year, for whatever con¬ 
 stitutes a sufficient performance of the contract, from the 
 custom of the country or nature of the service, is suffi¬ 
 cient. (z) 
 
 Cases where the master is unable to keep his servant Absence 
 any longer, from a sudden change in his circumstances, f, T m: ‘ s “ 
 seem reducible to this head; the la^v considering the litv to keep 
 service as performed, which the servant was only pre¬ 
 vented from discharging by the master’s misfortunes. As 
 where a servant, hired at yearly wages, continued in the 
 service till within four or five days of the expiration of a 
 year, when her master becoming a bankrupt, and the A ba . lk 
 messenger taking possession of the house, her mistress dis¬ 
 charged her, paying her the whole year’s wages. Bank- 
 r uptcy does not dissolve the contract of h iring^ ''wUJTout 
 the servant's consent , ami therefore the pauper gained a 
 
 settlement. (2) v 
 
 * 
 
 A maid servant, hired for a year, served until within information 
 seven days of the end of it ; when an information having a s ainst ‘ 
 been laid against her master for keeping a gaming-house, 
 lie quitted his house, and told his servants that he had no 
 longer occasion for their services, and then paid the pau¬ 
 per her whole year’s wages, and she did not engage in any 
 new service till after the year expired. The master would 
 have kept the pauper, except on account of his being so 
 obliged to quit his house; and the pauper was unwilling' 
 to leave his service. This was held to be a mere dispen¬ 
 sation with the service, the contract not being dissolved 
 ivith the consent of both parties. (3) 
 
 (?) Rex v. Birmingham, Dougl. service. See Rex v. Rushoime. ioEast, 
 
 -Qfttii this and the preceding 489. ante, 339 {3). 
 tabe may be supported as cafes of (2) PvCX v. St- Andrew’s Holborn, 
 dispensation with the master’s consent, 2 Term Rep* 627, 
 for it is found that the master always (3) Rex -v. ?t. Mary Lambeth, 
 received the servant back into his 8 Term Rep. 236. 
 
 , a a 4 * The 
 
Of Settlement by. Hiring and Service . 
 
 The next instance is, where the absence happens on 
 account of sickness. Here also it is immaterial whether 
 it is with (i) or without the master’s consent (2). Nei¬ 
 ther will it make any difference, that the master does all 
 m his power to put an end to the contract (3): or that 
 the servant is paid the whole year’s wages (4), or has a 
 deduction made (5); provided it does not appear to be the 
 intention of both parties to dissolve it. (6) 
 
 ( . '' ' < i • • - -V t 
 
 It is also clear that it is immaterial, whether absence on 
 this account be temporary in the middle of the year, or 
 continued by reason of a continuance of sickness, until 
 the end of it. As where a yearly servant served only seven 
 weeks, when being in liquor, he broke his thigh by a fall 
 from a beer waggon, and remained twenty-nine weeks 
 in the hospital. On quitting the hospital, he returned to 
 his master, who refused to receive him (the pauper con¬ 
 tinuing unable to work), but offered him his wages for 
 
 (1) Rex v. Christchurch. Where 
 the servant was frightened into fits, 17 
 days before the expiration of her year, 
 and was sent first to Mr. L.’s, a private 
 house, and if Mr. L. refused to admit 
 her, she was to be brought back to her 
 master’s house again. She resided at 
 C. s five days, and then went to an 
 hospital On the day after her depar¬ 
 ture, she went back to fetch her clothes, 
 and received her full year’s wages, but 
 no words of discharge passed. Burr. 
 S. C. 494. Rex «i/. Ozlevvorth, an 
 absence for three months, and the pau¬ 
 per received again into the service, 
 a Bott, 314. PI. 315. 
 
 (a) Rex v. Islip, 1 Str. 423. Rex 
 Vt Maddington, where a carter was 
 kicked by one of his master’s horses, 
 five weeks before the expiration of his 
 
 year, and went to his friends without 
 his master’s knowledge or asking his 
 leave, to get his leg cured. He never 
 returned during the remainder of the 
 year, but went a short time after' to 
 receive his wages, when the master 
 deducted six shilling? for the absence, 
 to which the servant consented. I: 
 was held that this was not like a 
 desertion of the service, but was an 
 absence for a reasonable cause, and 
 that the master ought not to have de¬ 
 ducted the wages. Burr. S C. 675. 
 
 (3) Rex -j. Sharrington, Cald. 471. 
 
 (4) Rex v. Christchurch, supra, 
 n. (1). posr. 
 
 ( 5 ) Rex v. Maddington, supra, n. 2. 
 Rex v. Sutton, 5 Term Rep. 657. 
 
 (6) See post. 
 
 seven 
 
Of the Year’s Service. 361 
 
 seven weeks, and a present, which he refused to receive, 
 and the pauper and his master went to a justice, but 
 nothing was done. It was held that this was a service for 
 a year. (i) , 
 
 But the service must have actually commenced under 
 the contract, in order to let in the period of sickness, to 
 count as part of the yearly service. For where the pauper 
 a few days before Martinmas, had been hired for a year 
 to commence at Martinmas, but was prevented from 
 going into his place for the first month, by reason of 
 illness, in consequence of which his master refused to 
 receive him, and they came to a new agreement; it 
 was held that the month’s absence could not be con¬ 
 sidered as a constructive service, for the hiring w r as exe¬ 
 cutory, and the service had in fact never commenced 
 under it. (2) 
 
 The third class of cases of dispensation is, where the 3 - Absence 
 servant is absent for any other lawful cause, as to look for seW, &c, 
 another service (3); or to be hired at a statute fair (4); Post - 
 this is no interruption of the service, although the master 
 do not consent. If a short absence also takes place at the 
 servant’s request, for any other reasonable purpose, and 
 it is agreed to by the master, the court has not been in¬ 
 clined to infer a dissolution from that fact only, notwith¬ 
 standing the use of the word “ discharge,” which seems 
 at first sight to mean a dissolution of the contract. As 
 where a yearly servant had served till the day before the 
 
 (r) Rex v. Sharrington, Cald. 471. 
 S. P. Rex i>. Sutton ; where the pau¬ 
 per was deprived of his reason, two 
 months before the expiration of his 
 service; he was then taken away by his 
 father, and did not return, but con¬ 
 tinued an incurable lunatic, 5 Term 
 Rep. 657. 
 
 (2) Rex v. Wintersett, Cald. 298. 
 See this case reported mo e fully, post, 
 
 (3) Rex v. Potter Heigham, Burr. 
 S.C. 690. 
 
 (3) Rex *•. Islip, post. 364. n. (1), 
 
 end 
 
4 6 
 
 2 6t 
 
 "Where 
 aster pre< 
 vents the 
 service. 
 Post. 
 
 Of Settlement by Hiring and Service. 
 
 end of the year, when he desired Ids master to discharge 
 lum, as he had let himself for the next year to a person 
 m a distant place, and was removing further from his 
 friends, he wished to go and see them, and pass that day 
 with them, and requested to have that time to himself; 
 to which the master consented, and he was discharged,’ 
 and paid his whole wages, save sixpence, which he allow¬ 
 ed his master for that day. It was held not to be a dis¬ 
 solution of the contract, but an absence with leave, (i) 
 
 The fourth case is, where the master discharges the 
 servant without his consent, or having lawful cause, and 
 thus prevents the servant from performing lijs seryice. 
 
 Under this head are to be classed cases of absence, for 
 the purpose of avoiding a settlement, when fraudulent 
 and tne sessions find the fact of fraud. A case has been 
 already stated, in which it was held, that if an hiriim i s 
 for less than a year, it will be defective, although it should 
 be found by the sessions to be fraudulent on the master’s 
 part (2).. But with regard to service, it seems taken for 
 granted in all the cases, that fraud, which vitiates most 
 things, prevents absence from defeating a settlement 
 The superior court will never infer fraud, which must 
 therefore be found specially by the sessions. (3) 
 
 W here the completion of the service is obstructed by 
 any act of violence pn the master’s part, it cannot injure 
 the unoffending servant, or cause an interruption in his' 
 service, whatever the master’s motive may be. • . .4, 
 
 J • 1 y: y, 
 
 As where, on the day before the servant’s year expired 
 t le master told him that to prevent his gaining a settle! 
 
 tU^******^’ P ° S,/ (3) See R « ktSf 
 
 til Am. it's n „ 3I °' and the cases cited, 
 
 A) Am. 3 ,,. n, <•,). R„ ,, St . {a) jf 
 
 I hiJlip s in Birn ingharn, pest. 36^, 
 
 ■*HT , ' menf. 
 
3^3 
 
 Of the Years Service. 
 
 uaent in that parish, he -should go away immediately, 
 which the servant refused to do, insisting to serve out 
 the year; whereupon the master turned him out of doors. 
 I his was held such a fraud in the master, as shall not 
 prevent the settlement, (i) 
 
 The pauper’s master died three weeks after she was 
 hired for a year, and the fann was continued on by his 
 widow and two sons. About three weeks before the end 
 of her year one of the sons quarrelled with her because 
 she threw more sand on the floor than he deemed neces¬ 
 sary, and turned her out of doors though she was willing 
 to stay; the next day she returned for her clothes and 
 took fiom the son as for her full wages what he in¬ 
 sisted was the sum for which she was hired, though she 
 demanded moie [_as her year’s wages^]. She gained a set¬ 
 tlement. A wrongful act of the master cannot dissolve 
 the contract without the servant’s consent, She did not 
 hire herself into another service before the end of her 
 year, and did every thing she could to continue in the 
 service from which she was wrongfully discharged. (2) 
 
 A servant, three days before his year was up, asked 
 leave of his master to go to a statute fair to be hired, 
 which the master refused; but the servant insisting that 
 he must go, the master replied, “ I am resolved that you 
 
 shah gain no settlement in the parish, and therefore if 
 “ you will go, it shall be for good and all.” “ No,” 
 answered the servant, “ I will serve out the year.” And 
 thereupon he went, and never returned during the three 
 days. Afterwards, when he returned to be°paid, the 
 master, after deducting for another absence, to which 
 the servant agreed, abated sixpence for the three days, 
 which the servant refused to allow; but the master re¬ 
 fusing to pay, the servant took the rest of the wao-es, 
 
 (1) Eastland Westhorsley, i Str. (,) R c? t , Hjtrdjior.., , * East, 
 526. See also Rex •v. Harilinghacj, 
 
 Stiles, i68, ; '' ' ‘ 1 
 
 This 
 
^ 4 ( 'j Settlement by Hiring and Service. 
 
 SllT?w dk1 " 0t r r VCnt a settlement ; for the servant 
 
 t u r o j‘ S t0 P Wt With him : and his 
 
 vice 1 abSeDCe “ order to S et another ser¬ 
 
 vice, was a reasonable one, which the master ought not 
 
 snoT t ’ Tu- th f SUbSeqUent absence without kave 
 , , desertion of his former service, especially when his 
 
 Jtnow th f , he W0Uld Serve OUt the - year > and refusal 
 which nl ' 1 e , daCtl ° n of the sixpence, are considered, 
 
 end of the year (T) 011 ^ WaSn0t disS ° lved tiU the 
 
 So although the master use no violence, yet if he dis- 
 
 it"? • h ;, p “p'v'“»•■* J C0 „ZX 
 
 law, it will not defeat his settlement. The pauper was 
 hired for a year in H„ served three quarters, and then 
 marned a woman with child. Of this his master com¬ 
 plained to a justice of peace, who thought the matter 
 complained of to be a sufficient cause for the £ 
 bemg discharged, and allowed of his discharge; but made 
 no c rder g touching the matter. The master 
 
 thereupon discharged the pauper against his consent. 
 
 -e court were of^pmion, that this not being a reason- 
 aW cause for discharge, and the pauper not having con¬ 
 sented, he was to be considered as having performed his 
 year’s service in H. and gained a settlemenUhere. (a) 
 
 turns away w j t m n^ma ' 3 " 4 f ° F 3 yCar > and ser Ved Until 
 
 tr Ir ' nt lyS ‘f f eXpi, ation ’ when on account of 
 T t dlffere ncew ltll her mistress, she gave her warning 
 tmt she would leave her service at the end of the yej 
 
 of 6 miStreSS ° n havln 8 hired another servant, by reason 
 
 ferfrom'th^ 16114 t aVi ° Ur ° f dle P au per, discharged 
 be irom the service, but paid her the full year’s wages. 
 
 The pauper accepted the wages, and left the parish eight 
 
 days before the year ended; but said she would Lave 
 
 . (l) Rex w. I.lip, i Sir. (*} Rexv.Hankury,Burr.S.C.JJJ.. 
 
 served 
 
Of the Year's Service, 
 
 served her year, if her mistress would have let her. This 
 was held to be a dispensation with the service, and not a 
 dissolution of the contract. For the turning her away, was 
 a mere wrongful act submitted to, but not agreed to by the 
 servant. Neither thought that they could put an end to 
 the service. The servant, though desirous of going, gave 
 warning to quit at the end of the year, and the mistress 
 wished for her own convenience to dismiss the servant be¬ 
 fore the end of it; but was convinced that she could not 
 dissolve the contract, and therefore paid her the whole, 
 
 } ear s wages. But it cannot be inferred from the pauper’s 
 receiving the wages, that she went away by agreement j 
 something should be stated to shew that it was voluntary on the 
 part of the servant , and that she consented to a dissolution \ 
 of the contract, (i) \ . f 
 
 y 
 
 It is moie difficult to determine how far absence for th e Absence to 
 purpose of avoiding a settlement, if unaccompanied with, 
 other circumstances, is to be deemed fraudulent, so a$i rriUtlld ^ con “ 
 not to discontinue the service. It seems most reasonable, S " nt ’ 
 that when the proposal of absence originates with the 
 master, who may be benefited as a rated parishioner by 
 defeating the settlement, anti it is only acquiesced in by 
 the servant, the inclination should be to consider it 
 fraudulent, so as to lean against inferring that the contract 
 has been in fact dissolved (2) But on the other hand it 
 is haid, if the law, which looks upon the privilege of 
 gaining a settlement as beneficial to the servant, does > 
 not allow him the right of avoiding one at the end of his 
 year, in a particular place, by absenting himself a day 
 irom service, when he might have originally done so by 
 an exception in the contract. If cases of consent be frau¬ 
 dulent, it is not a fraud upon the servant, but upon the 
 parish in which he was previously settled. 
 
 (1) Rex St. Philip in Bitminj- (2) Rex •». Sulirav?, aiitk 
 ham, 2 Term Rep. 624. n. dh 
 
 • . a , The 
 
0 Of Settlement by Hiring and Service . 
 
 The cases seem to have proceeded therefore upon the 
 following principle: If the absence from service is for the 
 purpose of defeating a settlement, it shall rkther be pre¬ 
 sumed to be under a dispensation, where the circum¬ 
 stances do not clearly shew that the contract has been in 
 fact put an end to. But there is no case in which a mu¬ 
 tual agreement to put an end to the contract, though 
 entered into for the avowed purpose of defeating the 
 settlement, has been held void, on the ground of fraud, 
 and some recent decisions are to the contrary. (i) 
 
 A seivant ten days before the end of his year, told his 
 master that he did not wish to be settled in the parish, 
 and asled. him leave to go and visit his relations, to which 
 the master consented. After the year was expired,' he 
 returned to his master, and hired himself as a day la¬ 
 bourer, in which capacity he served for three months; 
 some time after his return, he and his master made up 
 their accounts, and he allowed for his absence in the p;*e^ 
 ceding year out of his daily wages. It was held that he 
 gained a settlement, and that the leave and consent of the 
 master was fraudulent, and a mere evasion of the settle- 
 ment (2). We have just seen that absence for a day, 
 with consent, that the servant might see Iiis relations, 
 was held constructive service, where the purpose Was uOt 
 to avoid a settlement. (3) : 
 
 i :oa bmi 
 
 rnlstTrdow A servant had continued in the service, until within 
 not oi»j ct thiee days of the end of his year, when bein^* unwilling. 
 
 dement. to £ am a settlement m the parish, where there was an 
 house of industry, he requested his master to discharge 
 him, which he accordingly did, and they parted by con¬ 
 sent, the pauper abating one shilling for these three days/ 
 the court took no notice of the point. (4) -■ 
 
 (*) Rex v. North Basham, post. 
 367. et sec]. 
 
 (2) Rex v. Frome Seltvood, Burr. 
 S. C .365. 
 
 (3) Ante, 36*. n. (i)^ 
 
 (4, 1 Rex v. Potter Heigham, Burr. 
 S. C, 690. Ante. 362.(1). 
 
 But 
 
367 
 
 Of the Years Service. 
 
 But where a servant, wishing to avoid acquiring a set¬ 
 tlement in the parish where he served, and to be settled 
 elsewhere, went with his master, three days prior to the 
 expiration of his year, before a neighbouring justice to be 
 discharged, who discharged him, after hearing the mas¬ 
 ter and servant; whether verbally or in writing did not 
 appear; but the master told the justice, that he was wel¬ 
 come to gain a settlement in his parish if he pleased, and 
 then paid him his wages; but deducted one shilling and 
 ninepence for the time wanting to complete his year. It 
 was held not to be fraudulent on the part of the master, 
 for he had no objection to the settlement; it was a so¬ 
 lemn discharge by the consent of both parties. (i) 
 
 - • • J . / i . ‘ •» »-•-«. i_._. ■>* 
 
 So where a servant had served until within five or six 
 days of the end of his year, which he would have also 
 served, but that some householders of the parish gave him 
 two guineas to leave his master, ami go out of the parish 
 before his year expired, he being about to be married, 
 llis master insisted upon deducting nine shillings from his 
 wages before he would let him go; the pauper submitted 
 to the abatement, and went away. It did not appear 
 that the master was privy to the two guineas being paid, 
 which was done out of the parish rates, and he received 
 no benefit therefrom, not being rated to the poor. The 
 court intimated a strong opinion, that the year’s service 
 had not been completed, and could not confer a settle¬ 
 ment, although the absence was for the purpose of avoid¬ 
 ing one; but they decided the case upon a defect in the 
 order. (2) 
 
 « *f '• fj *\ r ‘ A * *7 - ' 1 f . 4 > . ’ 
 
 - ■ * 
 
 The court seem in these cases to have regarded even 
 the possible influence of the master with a jealous eye. 
 But where he has a right to discharge the servant, by 
 
 < 
 
 (1) Rex u. North Basham, Cald. PI. 351. See also Pawlet v. Burnham, 
 
 i6&. % Bott, 307. PI. 347.. post. 
 
 (2) Rex v. Preston, a Bott, 310, 
 
 reason 
 
3<5S 
 
 Jl. Of dis¬ 
 solutions. 
 
 Example. 
 
 Of Settlement by Hiring and Service. 
 
 reason of immoral conduct, he cannot be considered as 
 gudty of fraud in exercising that right, although it de- 
 
 T [ u u rVa f’ S ., Settlement ’ and the may be 
 
 eventually benefitted as a rated parishioner (i); and in all 
 
 cases of this sort, the only question is, whether the con¬ 
 tract has been m fact put an end to. 
 
 Wherever it appears that there has been an actual dis¬ 
 solution of the contract, the period of absence renders the 
 x service imperfect in all cases whatever. 
 
 A dissolution by consent may appear as a fact in the 
 case; as where it is stated, “ that the servant parted with 
 • his own consent (2);” or that he quitted the service 
 before the expiration of the year, “ without any com- 
 
 i: f 11 ! 1011 ° n j ‘ he P art of his waster (3),” or even that 
 he departed from” (4), « or left his master’s service (5),” 
 
 or « that his master consented to his leaving the ser- 
 “vice.” (6) & 
 
 t It may be likewise collected from various circum¬ 
 stances, indicating a determination to put an end to tlm 
 relation of master and servant. And lastly, it may appear 
 by the parties coming to a new agreement, inconsistent 
 witn that under which they had previously lived, which 
 necessarily pre-supposes a dissolution of the former. 
 
 Agreement. -. Aswhere an “"married man was hired for a year from 
 . artinmas, as a servant in husbandry, at about eio-ht, 
 pounds a year, with meat, washing, and lodging. In the 
 succeeding January he married, but continued with his 
 master as a menial servant until the ensuing May-day. 
 Some days before which, the master and pauper agreed’ 
 
 - h S£e r ° St ' “ VeWl cases on th! * PL 350. As to the effect rf a request 
 „ “ “ discharge,” see ante, 366, 36 7. 
 
 J2) Rex Seagrave, Caid. 347. („) Wickford „. Bretford, post. 
 
 /,r n, Sudbrooke, 4 East, 356. 
 
 (3) Sheen •v-Godalmin, 2 Bott, 310. See also post. 
 
 (6) Rex «/, Maidstone, 12East, 550 
 
 I S that 
 
 Implied; 
 
3 6 9 
 
 Of the Year's Service . 
 
 tliat the pauper should go (with his wife) as a hind, to 
 reside on and manage another farm of his master’s in the 
 same township. The second agreement was for a year 
 from that May day; the pauper to have five shillings a 
 week, with a house to live in rent free, and some trifling 
 perquisites. This was held by a majority of the court 
 not to be a prolongation of the former contract, but a new 
 agreement to serve for a year from May-day, which put 
 an end to the former, as being inconsistent with it. (1) 
 
 Lord Kenyon, C. J. who differed from the majority of 
 the court, thought that the original contract was not dis¬ 
 solved, for there was no end of the relation of master and 
 servant even for a moment , during the whole time the latter 
 continued in service , and the subsequent alteration of situa¬ 
 tion was not sufficient to effect it. 
 
 But at all events, to annul the first hiring, the second Alterations 
 agreement must be inconsistent with it. A variance in jvhfcTdon't 
 the nature of the service does not defeat the settlement. dissolve iu 
 A footman who was converted into a butler would gain 
 a settlement, by completing a year’s service, notwith¬ 
 standing such a change in his station. (2) 
 
 1 
 
 The pauper was hired by his uncle to serve for a year, 
 in his trade of a turner, to be found in board, lodging, 
 pocket-money, and clothes. After serving six months, 
 his master finding him idle, he and the pauper came to a 
 new agreement, by which he was to work- in the said 
 trade, and be paid by the piece, and find himself in board, 
 lodging, pocket-money, and clothes. Upon these terms 
 he continued with his master till the end of the year, 
 sometimes working by the piece, lodging and boarding 
 
 (1) Rex v. Great Chilton, 5 Term post. 378. See also Rex v. Overuor- 
 Rep. 672, I-'.rd Kenyon, C. J. dis- ton, 16 East, 347. 
 sent. See also Rex Wiutersetr, (2) Per Lord Kenyon, lb. 
 
 VOL. I. EE OUt 
 
OJ Settlement by Hiring and Service. 
 
 out of his master’s house, and at other times serving m 
 the house as a servant, when lie was lodged and boarded 
 with his master. The court were of opinion, that the 
 original contract was not interrupted and wholly done 
 away, but only the terms of it varied. The servant was 
 to work by the piece instead of the gross, and the con¬ 
 duct of the parties subsequent to the new agreement shews 
 that, with respect to the mode of performing the service 
 in the understanding of the parties, the original contract 
 still continued to subsist (i). Also if a minor hires him¬ 
 self for a year, and three months afterward enters into a 
 conti act of apprenticeship with the same master by an 
 invalid instrument, it does not do away the former con¬ 
 tract of hiring, and he acquires a settlement by continu¬ 
 ing m service during the rest of the year. (2) 
 
 So likewise a mere change of master does not annul or 
 dissolve the contract. (3) 
 
 The cases in which dissolution has been held to take 
 place, will be arranged with reference to the same order 
 0f leadin £ circumstances, as has been adopted in cases of 
 dispensation, as by that means the reader will be the bet¬ 
 ter able to compare them. 
 
 .tahiT A retura t0 service can have no effect in working a 
 a return to dispensation, when it clearly appears from other circum- 
 
 Dispensa- stances that there has been a dissolution. As where the 
 iron, ante, pauper having served one quarter of his year, upon some 
 dispute between him and his master, the latter insisted 
 on turning him away, and threw down his quarter’s 
 wages, which the pauper took up, and went to his fa¬ 
 ther’s house, where he continued six days, during which 
 time he looked upon himself as a free man. He ^llien re - • 
 
 (1) Rex v. Alton, Cald. 424. 
 
 (2) Rex v, fihinfield, 14 East, 3^1. 
 
 ( 3 ) See ante, 352. et seq. Rex v 
 Hardhorn, wEasqji. 
 
 turned 
 
r 
 
 Of the Year's Service. 
 
 \ 
 
 turned at his master's request , and continued in the service 
 
 to the end of the year, when the master paid him the 
 
 % 
 
 remaining three quarter’s wages. In this case the con¬ 
 tract was absolutely dissolved; the master insisted upon 
 turning away his servant, and paid him down all his 
 wages that were due; the consent on the other side isr 
 by taking the money up. Then how did he come back 
 again ? It was upon the master’s request; there is nothing 
 by which the absence can be explained. The meaning 
 of purging an absence, is where the act itself is doubt¬ 
 ful, (i) 
 
 The pauper being hired for a year to one Miles, served 
 only three days, when his master, upon a difference aris¬ 
 ing between them, desired him to go about his business; 
 on which he ran away, and then hired himself to Whitby 
 for a year. Having served him for six months, Miles in¬ 
 sisted that Whitby should not keep him in his service. He 
 was then paid his wages to that time, and quitted the 
 service, and went as a labourer to a barge-master for a 
 fortnight, when he returned, at the request of Whitby, 
 into his service, with the consent of Miles, and served 
 seven months, being a month over the year for which 
 he was hired, in order to make up his lost time, and 
 then received his wages. This is a very clear case; here 
 is an absolute dissolution of the contract, by both W. the 
 master and the servant, at the end of six months, whereas 
 the statute requires a continuance in the same service for 
 a whole year, the new service therefore, at the fortnight’s 
 end, cannot be connected with the old hiring. (2) 
 
 ( 1 ) Rex 1 /. Gresham, i Term Rep. ter, he was, with his own consent, dis- 
 
 102. charged. A fortnight afterwards, and 
 
 ( 2 ) Rex v. Ross, Burr. S. C. 688. upon his mistress’s request, his master 
 Rex v. Caverswall, S.P.„ The servant being from home, he went again into 
 served until within three weeks of the the service and completed his year. It 
 end of the year; when, on some dis- was held a total dissolution of the coii- 
 pute arising between him and his mn3- tract. Burr. S. C. q6r. 
 
 B B 2 ' Qi.e 
 
 37 1 2 
 
Of Settlement by Hiring and Service . 
 
 , -V * % 
 
 One of the strongest grounds to infer a dissolution of 
 the contract of hiring seems to be, when the parties sepa¬ 
 rate in consequence of a warning given by reason of a 
 power reserved to either party in the terms of hiring. 
 The pauper’s mother had, by her desire, looked out for a 
 place for her some time before old Michaelmas, and the 
 proposed mistress told the mother that she would give her 
 the same wages as her other servants, and wait till she 
 came. But no agreement was actually made until about 
 a w eck aftei old Muchaelmas, when the wages were for 
 the fiist time agreed upon, with liberty of parting at a 
 months "wages or a month’s warning(i). The pauper 
 continued in the service until the old Michaelmas day fol¬ 
 low mg, but had about five weeks before given her mis¬ 
 tress notice that she would quit at that time. On old 
 Michaelmas day she came to her mistress to receive her 
 wages, who paid her for the whole year, but told her she 
 wanted a week of serving out her year. The pauper said 
 she was willing to stay another week; but the mistress 
 i eplied, that it did not signify as she had got another ser- 
 \ant in hci place, who was then in the house (as she in 
 fact was). Per Lord Ellenborough, C.J. “About five 
 weeks before old Michaelmas day, the pauper gave her 
 mistress notice to quit at old Michaelmas day. The mis¬ 
 tress could not object to receive the notice, and therefore 
 looked out for another servant; but when the pauper 
 went to receive her wages, the mistress paid her the 
 whole year’s wages, but told her that she wanted a week 
 of serving out the year. The pauper then said, indeed, 
 that she was willing to stay another week; but as the 
 mistress in consequence of the warning which the pauper 
 had given her, and which she had accepted, had provided 
 herself with another servant, she stood, as she had a right 
 to do, upon the warning that had been given, and told 
 the pauper, it did not signify, as she had got another 
 
 (i) See a further s'atement of the terms of the hiring, ante, 316. 
 
 servant 
 
 372 
 
 Quitting 
 upon a 
 warning. 
 
373 
 
 Of the Year's Service. 
 
 servant in her place; on which the pauper left her house. 
 There can be no doubt but that both parties agreed to 
 put an end to the contract before the end of the year. 
 The servant gave above a month’s warning, which she 
 had a right to do, the mistress accepted the warning, and 
 both parties acted upon it. And this appears to have been 
 in fact before the end of the year, whatever the servant 
 might have supposed when she gave the warning. (1) 
 
 Also a dissolution must be inferred where the agree¬ 
 ment to separate is made by consent, and with a view of 
 entering into another service before the year expires: for 
 it presupposes an intention on both sides, that the servant 
 should be sui juris, and the contract at an end; and is 
 very distinguishable from cases, where the servant goes 
 to work with other masters for a temporary period, by 
 his original master’s consent. (2) 
 
 (1) Rexu Rush all, 7 East, 471. 
 
 (?.j The pauper, 11 weeks before 
 the expiration of his year, having a 
 dispute with his master, in consequence 
 thereof asked the latter to discharge 
 him, who answered he would not un¬ 
 less the pauper would get another man 
 to stand in his stead. He accordingly 
 got one R.,and gave him some money 
 out of his own pocket to take his place, 
 besides his wages to be paid him by the 
 master. The pauper stated that when 
 he brought R. to his master the latter 
 stated, “ If this man does any other 
 “ than well I can send for you, and 
 “ make you serve your time outto 
 which the pauper replied “ very well.” 
 On the contrary, the master stated, 
 
 that “ he did not recollect having said 
 “ to the pauper that he should expect 
 “ him to return ; that it was not' his 
 “ intention to have him back, and that 
 “ they parted on had terms.” The 
 pauper, during the remainder of the 
 year, hired himself as a day-labourer 
 in the adjoining parish, and R. served 
 under the new agreement till the end 
 of the .year. The court were of 
 opinion thp.t the master’s account be¬ 
 ing evidence to impeach what the 
 pauper hid sworn, and the sessions 
 having drawn the conclusion tlut it 
 amounted to a dissolution of the con¬ 
 tract, there was nothing to shew that 
 such conclusion was wrong, (a) See 
 ante, 353. 
 
 Dissolution 
 at parties’ 
 request, 
 ante, 353. 
 
 (a) Rex v. Mildenhall, iz East, 4&z» 
 B 13 3 
 
 Thus 
 
Of Settlement by Hiring and Service. 
 
 Thus where a yearly servant before the end of his 
 year went to a statute fair, and hired himself to another 
 master, to go into the service three weeks before the ex¬ 
 piration of the year he was then serving, if his master 
 would let him come then; and if not, then at the ex¬ 
 piration of his year. The next day the pauper asked his 
 master whether he would let him go, who told him he 
 could not spare him, he must get a new servant first. 
 Some tune after he hired one, and told the pauper, “ I 
 “ have got a new servant, you may go now, I have not 
 
 • work lor you both.” The pauper then went to receive 
 ns wages when the master’s wife said to her husband, 
 
 • on t deduct any thing from his wages,” who replied, 
 
 I don t intend it.” The pauper was paid his whole 
 
 wages, and then went away, being about a fortnight be- 
 ore the expiration of his year. Lord Kenyon—« The 
 distinction between the different cases seems to be this; 
 if the pauper be absent from the service, with the con¬ 
 currence, remaining however subject to the controul of 
 his master, he may acquire a settlement; because this 
 only amounts to a dispensation with the service: but if 
 the master ever parts with his controul over the servant, 
 then no settlement is gained; and the receiving the whole 
 year’s wages don’t make any difference. Here he had 
 given up all controul over the servant; he was instru¬ 
 mental in enabling the servant to make another contract 
 with another master; and from what passed between the 
 parties, it was evidently the intention of both, that the 
 pauper should become sui juris, and should be enabled to 
 contract with another master. The relation of master 
 and servant no longer continued, for he could not have 
 
 insisted on the pauper’s returning into his service after 
 the wages were paid. (i) 
 
 Tlie pauper was hired on Michaelmas day, ioth Oc- 
 tooer, 1797, for a year ending Michaelmas day, ioth 
 
 (0 Rex v. Thistle ton, STerm Rep. 185. Rex v. Lei s h, post. 38;. 
 
 11 October, 
 
375 
 
 / 
 
 Of the Year's Service . 
 
 October, 1798, he continued to serve till the 8th of 
 October, on which day he married, and his master con¬ 
 sented to his leaving the service and paid him his full 
 year’s wages. On the 9th. the pauper hired himself 
 and went into another service. The sessions having 
 found this to be a dissolution, the court confirmed the 
 order. There was an express renunciation on the part 
 of the master of his right over the servant two days be¬ 
 fore the end of the year, and the servant’s assent was 
 signified by his departure from the service, and contract¬ 
 ing the next day an obligation to another master into 
 whose service he entered immediately. (1) 
 
 So although the servant’s absence takes place for the 
 master’s accommodation, it will not prevent a disconti- 
 
 (1) Rex v. Maidstone, 12 East, 
 350. Le Blanc, J. gave the following 
 judgment, “ Upon the facts of the case 
 u as it appeared at the sessions, I 
 “ think they would have been well 
 “ founded in finding as a fact that this 
 * c was a dispensation of the service on 
 “ the part of the master, and not a 
 M dissolution of the contract; for ac- 
 “ cording to the cases it is always a 
 ** question for the sessions to decide, 
 “ whether the consent of the master 
 “ to the servant’s leaving his service 
 “ a few days before the end of the 
 K year for a particular purpose, but 
 “ paying him his whole year’s wages 
 “ be a dispensation of the service for 
 * f the remainder of the year, is a dis- 
 “ solution of the contract. Here the 
 “ servant wanted to marry, and one 
 u entire day before the end of the 
 “ year the master gave him leave to 
 ** marry and go away from his service. 
 « It was a fair and reasonable condu- 
 * ( sion to draw, that if the servant 
 
 “ wished to go away one day before 
 “ the end of the service for the pur- 
 “ pose of marrying, the master would 
 “ have no objection to dispense with 
 “ his service, and gave him a holiday 
 “ for that one day; for it might he 
 “ observed the service would have 
 “ ended on the 9th, and the servant 
 “ left his master’s service on the 8th. 
 “ But the sessions not choosing to draw 
 “ this conclusion themselves which I 
 “ think they might have done, sent 
 “ the case to us upon the dry facts 
 “ stated, and have not found that the 
 “ master did consent to give his ser- 
 “ vant an holiday, but merely states as 
 u a fact that the master consented to 
 “ his leaving the service. Under these 
 “ circumstances I cannot say that the 
 “ sessions have done wrong in quash- 
 “ ing the order, though I think they 
 “ might have drawn a different con- 
 “ elusion from the facts of the case.” 
 Ibid. 
 
 B B 4 
 
 Dissolution 
 for master’s 
 accommoda- 
 
 nuance 
 
3/6 
 
 Of Settlement by Hiring and Service. 
 
 his”requ« a t! nUal ' Ce of service, if the dissolution is satisfactorily made 
 2SS - °!' t , ° ther c ' rcu mstances (i). Tile pauper was hired 
 
 r^f l0r “ year ’ t0 come int0 thc se ™ce on the 
 i Uh of October, being old Michaelmas day, a month’s 
 
 wages or month’s warning, the mistress stating that she 
 
 ‘ " ot Wlsh t0 confine the servant for a year. She came 
 tne 12th, and served until about a fortnight before new 
 licnaelmas-day. Her mistress asked her, whether she 
 cnose toga away on new or old Michaelmas day, assigning 
 as a reason for asking, that she had hired a servant who 
 'wished to come home on new Michaelmas day . The pan- 
 pei said it was immaterial to her , as she had not got a place 
 and agreed toga at new Michaelmas day, at which time 
 tne other servant came into her mistress’s service. Her 
 mistress was not in a condition of life to keep two ser- 
 vants. The pauper on coming into the service had con- 
 Sidered herself as being to live with her mistress until old 
 Michaelmas: she was paid the whole of her year’s wages, 
 mug 1 waen she agreed to go away at the new Michael¬ 
 mas, nothing was said about it. The court held" It 
 the conclusion whether the contract was dissolved, oimht 
 to have been drawn by the quarter-sessions: but they 
 were of opinion, that there was strong evidence to war- 
 iant them in holding that the contract was dissolved be- 
 ore the end of the year, the servant not continuing 
 hake to serve the remainder of the year, and the mis¬ 
 tress having parted with her right to make her re-assume 
 the service. (2) 
 
 • ^ either ‘ Ioes * makc any difference that the master i„- 
 siued by sists n P° n dissolving the contract without just cause, and 
 
 makeS USe °f *f due '“to influence the servant’s con¬ 
 sent, provided it clearly appears that his consent is 
 actually obtained. 
 
 (1) See ante, 353. 
 
 I 
 
 (2) Rex 7/. Sr. Peter 
 8 1 erm Rep. 477. 
 
 Alan croft. 
 
 These 
 
Of the Year's Service, 377 
 
 These circumstances may sometimes have weight to in¬ 
 duce a presumption, that the absence was rather submitted 
 to, than any actual consent given to dissolve the contract. 
 
 But where it appears to have been dissolved before the 
 year’s service is completed, a settlement cannot be ac¬ 
 quired, although the law would have implied such ser¬ 
 vice, if the master had refused to permit its being per¬ 
 formed.^ 1) 
 
 The pauper was hired at a statute held a few days be- In sickness, 
 fore Martinmas, for a year from Martinmas. He re- Ante » 3 J 9 * 
 ceived one shilling for his god’s penny, and was to have 
 three guineas for his wages; the pauper fell ill the very 
 night of the hiring, and continued sick and unable to go, 
 and did not go into his service till a month after Mar¬ 
 tinmas, when the pauper and his mother went to the 
 master’s house, who being from home, they were shewn 
 to his wife, who complained that the pauper had not 
 come to his service according to the agreement, and 
 therefore refused to receive him. Whereupon the pau¬ 
 per’s mother said, we must fall into your will for wages, 
 and take what you will allow us; and left the pauper in 
 his service, where he continued until Martinmas fol¬ 
 lowing : when his mother was sent for, and received for 
 forty-eight week’s wages, after the rate of is. 2d. per 
 week, being less than the rate of the original wages. 
 
 Lord Mansfield C. J. The service had never com-, 
 menced under the first contract, if it had, no doubt the 
 master must have supported the servant in his sickness, 
 but that is not the question; the point is, that the agree¬ 
 ment acted upon here was a fresh agreement when he 
 recovered from his sickness, and the beginning of his 
 service Was then. Under the former the mistress re¬ 
 fused to receive him. Then considering the old contract 
 
 at 
 
 (1) See ante, 362. 
 
378 
 
 Of Settlement by Hiring and Service. 
 
 thatls^o t M Ual S6rViCe ^ but f ° r e!a ™ months; 
 is, to the Martinmas next, and the submitting to 
 
 the abatement of the month’s wages at the end nfVl 
 
 year is an affirmance of the agreement made by his mo- 
 
 ier, and this as rescinding the original agreement de 
 
 perfect Id’^ C ° nSidered “ 
 
 . I f 
 
 exelmS hi! th ? a cT ^ dkMed by mtsfortune from 
 the • g ° f th ® contract > namely, coming into 
 
 Slffim e S Mart “ : and the “/ref„si„gfo 
 dissolution JTT t0 3 " eVV agreement > which was a 
 tionedJa, t m!* T **“ rule alrea dy men- 
 
 r e It C °“ Ced > "' h -e the master caLot put an 
 
 vlt^ifTT tt but is obIiged to maintain lds -- 
 
 t, yet if the latter consent to a dissolution, there is 
 legal or constructive service. For if the servant chuse 
 n account of illness to go away, illness cannot prevent 
 
 m h orn coming to an agreement with his master, to nut 
 an en d to the contract. (3) ^ 
 
 Tims where a pauper served until within five days of 
 
 e se Z r Z° n ° f f his ^en he went to astatuS 
 to seek a service for next year. Being taken ill of a fever 
 
 fix weeks ^ ^ ^ ^ m0ther ’ and continued ill for 
 weeks. Having no money to maintain him in his ill 
 
 ness he on the same night desired his mother to go to his 
 
 master for his money, and to bring away his clothes 
 
 m °"” r Wm "™ *7. "><1 brought hi, all 
 
 Buller, J. upon tlut case, Rex «*. brooke 4 East ’ RCX Sud ' 
 
 Greudon Underwood, Cald. 364. * & see ante, 360. 
 
 * " 1 ^ I 
 
 one 
 
 •v 
 
379 
 
 Of the Year's Service . 
 
 one shilling, which she told him his master had stopped 
 for the remainder of the year, and gave it to him, toge¬ 
 ther with his clothes, with which he was satisfied; and he 
 thought himself at liberty to hire himself to another 
 master if he had been well enough. This is a dissolution 
 of the contract by consent, for the pauper who sent for 
 his wages five days before the year expired, had no light 
 to his wages, until the dissolution of the conti act, 01 the 
 expiration of the year j the master so fai as in his pow ei 
 put an end to the contract by deducting the one shilling, 
 which he had no right to do but on the ground that 
 the pauper did not continue his servant tor the re¬ 
 mainder of the year, and the pauper received the money, 
 saying he was satisfied, and thereby also assenting. (i) 
 
 Likewise where the pauper lived under a yearly hiring, 
 till about the middle of April 1796, when being too ill 
 of a fever to work, his master paid him his whole year’s 
 wages, when he left his master's service , and went down 
 to Lincoln hospital, and never returned into the service 
 again. It was held to be a dissolution of the contract, 
 and that no settlement was gained. For it being stated 
 that he voluntarily left his master's service , before the end of 
 the year, it must be taken to be a relinquishment of the 
 service altogether, and not merely that he left his mastei s 
 house, and this could not be, unless the contract was 
 meant to be dissolved. After that neither / party could 
 maintain any action against the other for the affirmance 
 of the contract, or continuance of the service. Neither 
 did the payment of the whole year’s wages in advance 
 make any difference 5 to which, Rex v. Godalmin (2), and 
 Rex v . Castlechurch (3), Rex v. Thistleton (4), aie in 
 point; and the court distinguished this case from Rex v. 
 
 (1) Rex v. Whittlebury, 6 Term (3) Post. 382. n. (a). 
 
 Rep. 464. ( 4 ) Ante, 374. a.(i). 
 
 (2) Post. 383. n. (1). ... 
 
 Christ- 
 
C)f Settlement by Hiring and Service . 
 
 Curisfchurch (i), for it did not appear there that the 
 servant left the service, when she quitted her master’s 
 house, and if Mr. Lcmonier could not take her in, she 
 was again to return thither. (2) 
 
 Absence 
 for a lawful 
 cause, 
 ante, 361. 
 
 So where the dissolution arises from the servant’s ab¬ 
 sence for any other lawful cause (3). A yearly servant 
 absented himself telling his master he was going to be 
 married, to which his master made no answer. He went 
 and was married, and on his return, said he had no inten¬ 
 tion of quitting the service; but the master said he would 
 not employ him any longer; and he replied he would 
 go, if he would pay him his year’s wages. The master re¬ 
 fused to pay him for more than the time he had served, 
 and asked him if he would take his wages, or go before a 
 justice; the master set out about his business, when the 
 pauper called him back, and said he would take the 
 money for the time he had served, and that he parted 'with 
 his own consent . The court considered that these last 
 words were so clear and unequivocal a dissolution 
 
 of the contract, that they would not suffer it to be ar¬ 
 gued. (4) 
 
 The pauper having served until nine days before the 
 expiration of his year, went away on Sunday morning 
 m order to get another place, when his year should be 
 up, without asking leave, or mentioning it to his master 
 He returned on the Tuesday following at six o’clock in 
 the morning, and asked his master what work he should 
 go about; the master told him he mightgo and serve the 
 master he had worked for the day before. He saw his 
 master an hour afterwards,- who then paid him his wages 
 up to that time only. No conversation passed. He then 
 
 Absence to 
 look for 
 service, 
 ante, 361. 
 
 fi) Ante, n. (1)'. 
 
 (2) Rex v. Sudbrooke, 4 East, 356. 
 
 4 
 
 ( 3 ) See ante, 361. 
 
 (4j Rex -v. Seagrave. Caleb 247 . 
 
 went 
 
I 
 
 I 
 
 • % 
 
 Of the Year's Service* 381 
 
 went away, and did not return: he wished to stay out 
 the year, but his master would not let him. This was 
 held to be a dissolution of the contract, for the master 
 refused to receive the pauper into his service; and though 
 the servant wished to stay, it appears that he did not 
 communicate that wish to his master. Both parties did 
 that which put an end to the contract; the one paid, and 
 the other received the wages; it is therefore impossible 
 to say that the servant was constructively in the service 
 after that time. (1) 
 
 The o-eneral truth of the observation formerly made, 
 that the fact, whether absence from service, is under a 
 dispensation, or subsequent to a dissolution, depends upon 
 the entire circumstances of each particular case, appears 
 from the determinations which have been quoted. In 
 arranging such as have been already detailed, regard has 
 been paid to some leading feature, which may at least 
 point out a sufficient analogy to assist the recollection; 
 but they severally contain circumstantial particulars, 
 which may have all thrown some weight, however small, 
 into the scale of judicial decision. 
 
 The actual condition of the parties, the reasons for Grounds for 
 
 , distingush- 
 
 leavinjx each other, the manner, and, as it \\ eie, tempei oi ing between 
 parting, are of importance in leading to such a conclusion ^d'ssol^ 
 where the actual conversation between the master and tion, 
 his servant is equivocal and indecisive. It is from these 
 minute particulars that the conclusion must be drawn, if 
 there are none of a more marked characteristic, such as 
 the servant’s going into another service (2), or the master’s 
 engaging a new servant in his place (3), or their parting 
 upon notice given under the 'terms of hiring. (4) 
 
 (1) Rex v. Clayhydon, 4 Term 
 Rep. 100. 
 
 (2) Rex v Thistleton, ante, 374. 
 
 (3) Rex v. St. Peter’s Mancroft, 
 ante, 376. 
 
 (4) Rex Rushall,ante, 373. See also 
 Rex -u. East Kennet,post. 397. Rex 
 v. Grantham, post. 397. Rex v. Up- 
 Well and Rex v. Corsham, post. 398. 
 
 Thus 
 
3^2 
 
 Effect of 
 paying wa¬ 
 ges. 
 
 « m 
 
 Of Settlement by Hiring and Service. 
 
 i * 
 
 rhus It has been already seen, that where the servant 
 passed the last three or four days of his year at his father’s 
 with Ins master s consent, and afterwards when he re- 
 cenec his year’s wages, no deduction wa3 made, it was 
 considered as a dispensation with the service (i). But a 
 veiy slight alteration of circumstances has been held to 
 warrant a contrary determination; as where a servant 11 
 days before the expiration of his year went away with 
 his masters consent, and took his clothes with him, and 
 icceived his whole year’s •wages, this was considered as a 
 clear dissolution of the contract, and that the service was 
 not constructively performed for a year. (2) 
 
 But where, on the other hand, the pauper could not 
 say whether he served the last three days, or went away 
 without serving them, but that he received his whole 
 years wages, “it was thought that this at least seemed 
 10 imply the master’s consent or permissionW 
 deed tins case might be supported on a further ground* 
 that there being a doubt as to the fact of service for the 
 last three days, the payment of the whole year’s waves 
 was proof of the service; for it is presumptive evidence, 
 that the service is performed, since a title to the wages 
 eouid only accrue to the servant thereby. ° 
 
 I'rom these and the various other cases in which* the 
 manner of paying wages is stated, it appears that it is a 
 circumstance which may serve to explain whether an act 
 in itself equivocal amount, to a dispensation with service 
 or a dissolution of the contract. In this respect not only 
 payment of the entire wages, or the subtracting of part 
 have been relied upon as material, but also whether it has’ 
 been made at the time when the absence was about to 
 
 p ““ S ; Undermilbeck ’ J Te,m ( 3 ) R« v. Milwich, Burr S C 
 Eep. 387. ante, 353. ^ 
 
 (0 Castlechurch, Burr, 
 
 S. C. 68 . 
 
 take 
 
I 
 
 Of the Year’s Service. s 3 83 
 
 take place, or delayed to the conclusion of the year. 
 
 The payment of a year’s wages gives rise to the presump¬ 
 tion, that a year’s service has been performed cither 
 actually or constructively; while a deduction of part 
 gives equal strength to the contrary inference. If the 
 payment is deferred to the expiration of the year, not¬ 
 withstanding absence, it warrants a supposition, that the 
 contract continued to subsist by which they' were then 
 made payable. On the other hand, if they have been 
 discharged previously, this renders it probable that a disso¬ 
 lution took place; for it is only in consequence of the 
 agreement having terminated, that the master could be 
 compelled to make, or the servant enabled to enforce, 
 payment. It may even afford room for some distinction, 
 whether a deduction is made during the year, when it 
 may be evidence of an intention on the master’s part to 
 dissolve the contract, and of an acquiescence by the ser¬ 
 vant ; or at the termination, when the latter may be sup¬ 
 posed to have surrendered his right to the whole, in the 
 pressure ofhhis immediate wants, or the apprehension of 
 a tedious litigation. But these circumstances are only of 
 importance where the case is doubtful in other respects. 
 
 \ 
 
 Thus where a servant served a whole year except one 
 week, which he neglected to serve, because he and his 
 master could not agree respecting the wages, he should 
 have the ensuing year. He therefore quitted his service 
 without any compulsion on the part of his master, a week 
 before the year expired, but his master paid him his wages 
 for the whole year. It was held that the words “ without 
 compulsion ,” were to be understood, that he had quitted 
 the service by mutual consent, and therefore the service 
 was interrupted. (1) 
 
 By 37 Geo. III. sect. 22. the inrohnent of a servant 
 as a militia-man, by virtue of that act, shall not rescind £ence in 
 
 militia. 
 
 (1) Sheen v. Godahrfog, 3 Bott, 319, fl. 350. See ant?, 3O8. 
 
 the 
 
 . 9 
 
3 S 4 
 
 Of Settlement by Hiring and Service. 
 
 the contract, or vacate tile employment between him and 
 ns master, unless the militia in which he is inrolled 
 shall be embodied or called out by His Majesty, or 
 ordered so to be, in pursuance of the act, or unless she 
 shall leave the service for the purpose of being trained and 
 exei cised for the space of twenty days, in pursuance of 
 e act, and shall not return to the same service at the 
 enc o such twenty days, or as soon after as reasonably 
 may be, allowing an abatement from his wages in pro¬ 
 portion to his absence from the service, to be settled by a 
 justice of peace. J 
 
 dissolution 
 by a magis¬ 
 trate. 
 
 It has been already shewn, that if the master applies to 
 a justice to have his servant discharged, and his cause of 
 complaint does not warrant it, the servant’s dismissal 
 against his consent, will „ ot vitiate the service, where 
 the magistrate makes no order, although he should be of 
 opinion that it is a valid cause of discharge, (i) 
 
 • . . 
 
 On the other hand, if the master and servant volun¬ 
 tarily go before a magistrate, and the latter is discharged, 
 it amounts to a solemn dissolution of the contract. (2) 
 
 — ' *# .. 
 
 The pauper was hired for a year at fifty-five shillings 
 wages, and (if she behaved well) two pounds of wool. 
 
 & e served for about eight months, when a dispute hap¬ 
 pening with her master, about some stockings which had 
 been burnt, he dismissed her from his service. She ap¬ 
 plied to a magistrate, and when before him, was charged 
 y ier master with neglecting to feed his pigs and burn- 
 g the stockings. She was desirous of continuing in the 
 service, but her master refused ; and the magistrate or- 
 eicd her master to take her back into his service, or pay 
 
 31? am" 3 7 ' g4 Hanbur >'- Burr - s - c - 3 ""“ter can discharge his servant for 
 (~\ n, r ' , immorality of conduct durine service 
 
 “x; tr-ssr- J - - 
 
 her 
 
Of the Yeai ? s Service . 
 
 r 
 
 her the whole of her wages. He refused to take her again, 
 but paid her the whole of her money, but not the wool. 
 The pauper, from the time she received her wages, of¬ 
 fered herself as a servant soon after to several persons. 
 Lord Ellenborough, C. J. We are not called upon to 
 say w T hether the magistrates had a right to discharge the 
 servant from her service; it is enough that he proposed 
 an option to the master, to take the servant back, or pay 
 her the whole of her wages. The master refused to take 
 her back, but agreed to pay the whole wages, and did 
 pay them; and the servant shewed her assent to the disso¬ 
 lution of the contract by taking the wages and offering 
 her services to other persons. Both parties gave the ma¬ 
 gistrate the power of dissolving the contract, by shewing 
 their assent to what he directed in that respect. Then, 
 after all this could either the master or servant have 
 maintained an action against each other, the one for not 
 performing the remainder of the service, the other for 
 not employing her during that time ? This is the true 
 question to be considered; and I should not wish to carry 
 the idea of dispensation further than it has been already 
 carried; which in many of the cases seems to me to have 
 been stretched as far as ingenuity could go, upon the false 
 idea that the servant had a right to acquire in gaining a 
 settlement, as if he must not have a settlement at all 
 events, in one place or another. I do not mean however 
 to disturb any of the cases which have been already de¬ 
 cided ; but I am not inclined to carry the decisions fur¬ 
 ther, from the plain words of 8 & 9 W. 3. c. 30. 
 which are, that no servant shall gain a settlement, u un¬ 
 less he shall continue and abide in the same service during 
 the space of one whole yearand it seems to me, that 
 when the parties stand in such a situation, that neither 
 the master can compel the servant to come back, nor the 
 servant compel the master to take her back, and neither 
 have any legal means of compelling redress against the 
 vol. 1. cc other, 
 
3 86 
 
 Of Settlement by Hiring and Service. 
 
 Other, that there is a dissolution of the contract. Law- 
 rence J. cited R. v. Thistleton (i), R. v . St. Peter’s (2), 
 as deciding that if the master once parts with the controul 
 
 over his servant, and cannot call upon him for his service 
 no settlement is gained. (3) 
 
 , 1 
 
 fn'oTLT The P au P er ’ flve before the expiration of his year 
 S eivi«. Went with his master’s leave to a meeting called a mop' 
 
 to look for another place. He returned at three o’clock 
 next morning with some ribbands in his liat. The master 
 m the course of the morning observed, that he supposed 
 masters were scarce at the mop, and that he had enlisted 
 for a soldier, and told the pauper he should serve him no 
 onger. The pauper told his master he had not inlisted 
 (as the fact was), and that he wished to stop his year out. 
 Rut the master said he should stop no longer, and at the 
 same time offered him his wages for the time lie hail 
 served, which the pauper refused. He said he would 
 have accepted his full year’s wages if they had been then 
 tendered, but that he had rather stay out his year. He 
 eft his master’s house immediately, and never returned; 
 but having taken out a summons, next day both appeared 
 before a justice, when the pauper applied to the magis¬ 
 trate to direct his master either to receive him into his 
 service for the remainder of the year, or to pay him his 
 whole year’s wages, and the magistrate verbally directed 
 haif a crown to be deducted from the year’s wages, and 
 retained by the master. On the same day the pauper hired 
 himself, and entered upon a new service. His former 
 master, a week afterwards, paid him his full year’s wages. 
 
 1 he sessions were of opinion that he gained a settlement 
 by this service. But the Court of King’s Bench quashed 
 their order. Lord Ellenborough, C. J. How can there 
 ie said to have been a constant refusal in the servant to 
 
 (1) Ante, 374. n . (i ). 
 0) ^ nte > 376. n. (a). 
 
 ( 3 ) Rtx v. King’s Pjron, 4 East, 
 351 - 
 
 put 
 
3^7 
 
 Of the Year's Service . 
 
 put an end to the contract, wlien lie actually entered 
 into another service before the time when it would have 
 expired. That is an insuperable difficulty. That he did 
 not receive his wages before the year was out cannot vary 
 the case, for he would have received them at the time if 
 offered. The case of King’s Pyon is almost the same in 
 terms as the present. The magistrate was made in both 
 cases a sort of arbitrator between the parties, and both 
 parties acquiesced in putting an end to the contract. (i) 
 
 i , * C/ 
 
 The case of King’s Pyon was decided upon the ground 
 that both parties went before a magistrate, and agreed to 
 leave the decision of their dispute to him, and he hearing 
 what was urged on both sides, gave an option to the 
 master to take the servant back, or pay her the whole 
 year’s wages, and both parties went away, acting as if 
 they acquiesced in that determination (2): and the same 
 principle is referred to in that of Rex v. Leigh. 
 
 But there has been a determination that the contract 
 of hiring: between master and servant may be dissolved, 
 
 O * 
 
 even against their consent, by an order of removal made 
 and executed pending the service, and unappealed from. 
 
 A servant hired for a year served till within six weeks 
 -of the expiration of his time, when he was taken up on 
 a charge of bastardy, and married next day. He then 
 returned to his master, who had made no complaint, and 
 did not discharge him. Two days afterwards he was 
 removed by an order of removal to the place of his last 
 settlement, where he continued four days, and then re¬ 
 turned to }iis master’s service, who wullingly received him 
 again. He continued in his service till the end of his 
 
 •** * 
 
 (1) Rex v. Leigh, 7 East, 539. (a) Per Le Blanc, J. 4 East, 355. 
 
 See also Rex v. Weltord, post. 393. 
 
 Service in¬ 
 terrupted by 
 order of 
 removal. 
 
 C C 2 
 
 year, 
 
388 
 
 Of Settlement by Hiring and Service. 
 
 year, which expired about a month after his return, when 
 he was paid his foil wages. Here the circumstances of 
 the pauper s apprehension on a charge of bastardy and 
 marriage were laid out of the question, for it was com¬ 
 petent to the master to receive him again after he was 
 discharged out of custody, if he pleased. But the two 
 judges present thought that the order of removal being 
 unappe ed from, put an end to the service, for the pauper 
 could not legally return to the parish to fulfil his contract. 
 
 e cou not be liable to an action by his master for not 
 completing it; and if he had been indicted for disobeying 
 the order, it would have been no defence that he re¬ 
 turned to complete his agreement. If the law intervenes, 
 and says the party shall not complete the contract, it puts 
 an end to it; and as the pauper served only a month after 
 is return, he could not gain a settlement; for the act 
 subsequent to the order by which he was to gain a settle- 
 ment, should be complete in itself, (i) 
 
 The service hitherto shewn to be incomplete, is where 
 a dissolution of the contract had either taken place at the 
 
 (i) Rex v. Kenilworth, a Term 
 Rep. 598. This case seems con¬ 
 siderably shaken by Rex v Fillongley, 
 2 Term Rep. 709. For the magis¬ 
 trates have no right to put an end to a 
 contract between parties without their 
 consent. Lord Kenyon states as a 
 distinction between that case and the 
 present, that it was one of residence 
 on a tenement, but this is of a master 
 and servant, where justices have 
 power to put an end to the contract. 
 But in Rex v. Ozleworth, Burr. S. C. 
 302. An order for removing a yearly 
 servant, was quashed upon the ground 
 that he was actually in the service 
 of his master, and could not be re¬ 
 
 moved from such service. In Rex v. 
 Marlborough, an order of removal 
 of a maid servant, who had been got 
 with child within the year of service# 
 was quashed, for till the year be out, 
 none shall disturb the -party from 
 serving; and since she is not remove¬ 
 able, if she leave her master without 
 his consent, she may be sent back to 
 her service, 1 2 Mod. 402. a Bott, 
 306. PI.346. See also Lord Mansfield, 
 C. J. Rex v. Brampton, Cald. n. 
 Rex v. Hardingham, Stiles 168. 
 
 * Bott, 306. PI. 345 . Resol. of 
 Judges of Assize 1633. Dalt. 235. 
 and Rex v. Alveley, 3 East, 563. 
 
 ft 
 
 time 
 
3 8 9 
 
 Of the Year’s Service. 
 
 time when the servant was about to quit his master, or 
 immediately upon his return after an absence, when, in 
 contemplation of law, it would be referred to the moment 
 at which the absence began. 
 
 We come now to consider the third case of absence 
 from service, namely, where the contract continues, 
 but the master’s consent to the absence cannot be im¬ 
 plied. (i) 
 
 That a settlement may be defeated by this means, seems 
 to have been determined in one of the earliest reported 
 cases upon the question of yearly service. 
 
 A covenanted servant three weeks before the expiration 
 of his year, quitted the service with his master’s consent, 
 and abated from his wages in proportion to that time. It 
 was contended in favour of this being a good service, 
 that being a covenant servant, it must be presumed to be 
 by deed, which could not be discharged by parol consent, 
 and therefore he continued a hired servant during the 
 year. But the court thought that for the purpose of set¬ 
 tlement there was no difference between a covenant by 
 deed, and an agreement by parol. If the hiring be by 
 covenant, perhaps it is not to be destroyed by such con¬ 
 sent, and an action may be maintained on it; but as to a 
 settlement, here is a clear discontinuance of the year’s 
 service. There is no fraud found, nor the appearance of 
 any on the master’s part: can he oblige his servant to 
 gain a settlement nolens volens ? The statute of 3 W. & 
 M. c. 11. [8 & 9 W. III. c. 30.] says that he must serve 
 a year; now this man has not served a year. (2) 
 
 This class of cases exists only where there is no discharge 
 by mutual consent, nor a valid one by a justice’s order. 
 
 (1) 'Ante, 344. 2 Bott, 307. Pi. 347. 
 
 (a) PawUt v. Burnham, 1 Geo. T. 
 
 C c 3 
 
 III. Service 
 incomplete, 
 though con¬ 
 tract conti¬ 
 nues. 
 
 Covenant 
 
 servant. 
 
 
 According 
 
34 ° 
 
 Of Settlement "by Hiring and Service. 
 
 Absence 
 caused by 
 the master, 
 
 According to the words of the statute, any interrup¬ 
 tion in the year’s service renders it incomplete, unless 
 there is a supposed assent by the master, or an exemption 
 created by operation of law. Some cases seem adjudged 
 upon this principle, although the contract for service con¬ 
 tinued to subsist; for the absence being wilful on the 
 servant s part, and the master’s assent directly negatived, 
 there is nothing to warrant the inference of an implied 
 consent. If a servant is guilty of such misconduct as 
 justifies the master in • forbidding a continuance of the 
 service; as where a woman is pregnant, or a man the 
 putative father of a child likely to be born a bastard ; 
 and he does so, the service is incomplete, although the 
 contract is not formally dissolved. It is no dispensation 
 from service: for the master having aright to prevent 
 its continuance, and having done so, his consent that such 
 absence shall be deemed service under the contract can¬ 
 not be inferred against the fact. Neither is it construc¬ 
 tive service by operation of law; for the law will not con¬ 
 sider the service as performed during absence, where the 
 master is guilty of no injustice in prohibiting, and the 
 
 servant has no lawful excuse for not performing his 
 duty, (i) . . PJ J, 
 
 Absence by 
 the servant. 
 
 On the other hand, if the servant wilfully withdraw, 
 either from his own or his master’s misconduct, this 
 may e a mere interruption of service in the first in¬ 
 stance, at the master’s option, and at the servant’s in the 
 second. 
 
 But if the master in either case request the servant to 
 return and complete his service, and the latter refiise 
 it is impossible to imply the master’s assent to subse¬ 
 quent absence, and the law can raise no inference in the 
 servant’s favour, against his refusal. Such cases may, 
 
 (0 Ame > 35 . 7 , 358. 
 
 and 
 
Of the Year's Service. 3 9 1 
 
 and have occurred without an actual dissolution of the 
 contract, since that cannot take place, unless by the in¬ 
 terference of a magistrate, or by the parties’ mutual 
 consent. (1) 
 
 The court seem however in some cases to have thought 
 that the dismissal of a servant for immorality by the mas¬ 
 ter, amounted to a dissolution of the contract, although 
 it took place without a magistrate’s intervention, and 
 against the servant’s consent. 
 
 A master finding his maid servant to be with child, Servant 
 turned her away three weeks before the expiration of the vvith^htid . 7 
 year, and paid her the whole year’s wages, and half a 
 crown over, whereupon she went home to her father’s. 
 
 The pauper said on her examination, that she was willing 
 to stay her year out, if she might, a's she was able to do ' 
 the work; but it was immaterial to her whether she staid 
 or went, as she had received her whole year’s -wages; and 
 that she was not half gone with child when she left her 
 service, and hoped she could have done the work till the 
 end of the year. 
 
 If the sessions had stated as facts in this case what they 
 set forth in evidence, there was perhaps sufficient to war¬ 
 rant the inference of a dissolution by consent; but the 
 court put it on the principle of an actual dissolution by 
 the master. 
 
 Lord Mansfield C. J. The question then is, is this 
 contract dissolved within the year ? The answer depends 
 upon this; has the master done right or wrong in dis¬ 
 charging the servant for this cause ? I think he did not 
 
 (1) Per Lord Kenyon, Rex v. tress discharged the servant not for 
 Grantham, 3 Term Rep. 754. where immorality, but sauciness. Cald. 14. 
 the servant refused to stay, post. n. c. 
 
 Temple v. Prescott, where the mis- 
 
 CC 4 
 
 do 
 
Settlement by Hiring and Service. 
 
 do wrong; the marginal note cited from Viner(i), what¬ 
 ever degree of authority it may be entitled to, is well 
 ™ lltC . In principle; if the master agrees to the con- 
 ac s going on, the overseers, it is true, shall not take 
 her away because she is with child; but shall the master 
 therefor 6 be bound to keep her in his house ? To do so 
 would be contra bonos mores; and in a family where there 
 
 m.IT 8 PerS >° nS T b0th , SCandal °us and dangerous, 
 a sen ant s absence is said to be purged (which is 
 
 “ Impi '°P er ex P ress i°n) by receiving him "again, the re, 
 mng only explains , and shews the nature of the absence ■ 
 the consequence of it indeed is, that such a reception 
 st generally be considered as amounting to a dispen¬ 
 se “h ?“ tnerCby SUbjeCtS the mastCr t0 the Pay^nt of 
 die whole wages: but the effect of a positive act of the 
 
 aster, i. c. the dismission of his servant, shall never be 
 Servant for - .i 
 
 a supposed v c * e a yearly servant in husbandry served till 
 
 timacy with m t ' pi ration of his year, when the 
 
 IhM VVkh f C ° Unt ° f a su PPOsed criminal intimacy be¬ 
 
 tween the pauper and a servant girl, then big with child 
 
 Who had lived with the master, but was discharged from 
 
 char'ed l,hn nSISted , UP T the Service > and d «- 
 
 cnaiged linn accordingly. The master offered him all 
 
 hs wages but four shillings, which he insisted „p“ 
 
 taming as a satisfaction for the loss of service, for the 
 
 ree weeks. This the pauper, who would have staid if 
 
 ns master would have let him, refused to allow. The 
 
 pauper, after he was turned out, applied to a justice of 
 
 peace to receive his full wages, but being told by him 
 
 accented', 0U h ! n h 0t ’ “ d haVing "° mone y to s «bsist on, he 
 accepted what h.s master had offered him, with the abate- 
 
 ^br. ) t it.Remm a l N (C) l>i ra ' Sh ’ V ‘ n ' W ReI Brampton, Cald. n. 
 
 ment 
 
Of the Year's Service. 393 
 
 ment for tlie three weQks. No order was made by a jus¬ 
 tice or justices for discharging him. The couit seemed 
 clear, that if the fact of criminality had been positively 
 stated, it would have come within the principle of the 
 foregoing case. It went down to be restated on that 
 point, when the fact of criminality being positively found, 
 the case was abandoned, (i) 
 
 But supposing the master’s right of dissolving the con¬ 
 tract to be established by these decisions, where a lawful 
 cause of dismissal exists, it will not reach cases of absence, 
 by reason of an offence, for which the master has no au¬ 
 thority to discharge the servant, and where the lattei - 
 refuses to acquiesce. Lord IMansfield and the Couit of 
 King’s Bench seem therefore to have resorted in a subse¬ 
 quent case to the principle of incomplete service already 
 stated. (2) 
 
 A yearly servant was apprehended four days before the 
 termination of his year, by a justice’s warrant, charged offences 
 by a woman with having gotten her with child, which had 
 been horn a bastard about six months after the commence - wards dis- 
 ment of his year. He was kept in custody by the palish 
 officers until the end of his year \ his master, 011 the day 
 of his apprehension, settled his account of wages, saying 
 he might not see him again: he then deducted one shil¬ 
 ling on account of his not serving till the end of his year, 
 saying that though he had no objection to the pauper’s 
 gaining a settlement, yet that perhaps the other fanner s 
 might. The master did not in any other manner assent 
 to or dissent from the absence. 
 
 Lord Mansfield stated that he had no difficulty to say, 
 that a master hiring a servant after an offence committed, 
 and that not in his own house, shall not at the close of 
 
 (1) Rex Welford, Cald. 57. (a) Ante, 389. et scq. 
 
 the 
 
394 
 
 Absence 
 from con¬ 
 finement a 
 father of a 
 bastard. 
 
 Of Settlement by Hiring and Service. 
 
 the year discharge him under this pretence (,\-l A 
 go upon that ground, nor upon the consent or i ."a 
 
 r r? f ls bef ° re of the 4, 
 
 it should z r %i of both ^ 
 
 intended, because the J There WaS 110 fraud 
 
 master intend to nrrv t "° agreCmem >‘ "or did the 
 
 he deducts a sotne” 1^X7 but 
 
 it was the object of other ^ ° pen ’ which 
 
 to have discussed. The TeTVt ^ interested > 
 r«d, „„<i „o w “« fo„”T'" s “ 
 
 the servant bernmne ; i, °* ^ ls own act > that 
 conduct is „ .Z; ,Sf ° Hi, 
 
 what jurisdiction soevei & thoseTaw J,ty T'-^ k ' V ' S ’ by 
 
 the consequences of it are ? ^ administered > and 
 
 If an action Z lLZZnZZ ‘ 
 
 not recover upon a mm t ° blS vva g es > he could 
 
 Buller J ' Th S^ntum mermt for those four days. 
 
 impliedt thXT ’nTtf \ ^ ™ 6ither « 
 
 no circumstance that wihTwarranTanlnf f* 
 
 not gain a settlement. (2) mP lcatlon > he dld 
 
 The pauper, within ei<dit or nine A r . 
 
 5 tion of his year, was committed for not " eXpira ' 
 
 indemnify the parish as the father of J*° 
 born a bastard, or enterin-r into hke]y to b e 
 
 at the quarter sessions, h&Later'b^SS’SS^ XT 
 wardens, and one of the persons th f ' , church - 
 went with him to Bridewell. The day on whdTf '' “ d 
 expired, he gave his own bond to indemnify the ^ ^T 
 and on the same day, his master, with the other offi"^ 
 
 h »> Ike ~f d» rZ£Z 
 
 ( r ) Qu*re if this can extend to an 
 Unmarried female who is with child 
 when hired. See Rex Brampton, 
 ante, 392. J * 
 
 (2) Rex v. Westmeon, Cald. 129. 
 
 wages 
 
I 
 
 Of the Year's Service. 
 
 wages agreed for, deducting four shillings, (contrary 
 to pauper’s consent,) for the time he had been in con¬ 
 finement; it was argued, that the contract subsisted till 
 the end of the year, otherwise the wages would have 
 been paid, when the pauper left the house, and also 
 that it was a fraudulent act, in order to prevent a settle¬ 
 ment. 
 
 Lord Mansfield C. J. The single question is, whether 
 the pauper served his year ? In fact , he certainly did 
 not. Did he then constructively? There is not a pre¬ 
 tence that the master consented to dispense with the time 
 which the pauper did not serve: there is not a colour of 
 fraud in the master’s conduct. The servant’s absence 
 was the consequence of his own criminality. His impri¬ 
 sonment was not illegal. There is no doubt. Buller J. 
 There must be either an actual or an implied service ; 
 here is no actual service: from whence i-s the court to 
 imply one. (i) 
 
 What proves that there is no absolute dissolution of 
 the contract in these cases is, that absence on this account 
 may be cured like any other, by the master’s taking the 
 servant back again. Thus where a yearly servant was 
 apprehended on a charge of bastardy, married the next 
 day, and his master did not make any complaint, or dis¬ 
 charge him from his service. On the third day he was re¬ 
 moved to his settlement, but returned to his master, (being 
 absent in the whole nine days,) who received him again, 
 and at the end of his year paid him his full year’s wages. 
 Per Buller J. The circumstance of the pauper’s having 
 been apprehended on a charge of bastardy, and of his mar¬ 
 riage I lay entirely out of the question, for it was competent 
 to the master to receive him again after he was discharged 
 
 395 
 
 (i) Rex v , Nohh Cray,Cald. 495. 
 
 out 
 
3S>6 
 
 May be a 
 dissolution 
 b y consent. 
 
 Of Settlement by Hiring and Service . 
 
 servp^V St °^ ^ PIeased » and tIie servant might have 
 is master after he was married as well as before.( i) 
 
 'zzz r traits ? ~ ~ 
 
 nt v took place by consent. 
 
 V t* P “ P,r bc “5 6 “ to 
 
 i > t seven pounds wages, served till nr 
 
 »k«n ta*, lhuti ,„ „ , 
 
 tc~)l 1 t, * i he went to his master and 
 
 rjT H mUSt be ° ff > and "*** Wm for money’to go 
 ami he ra „ avvav T -^ guineas 311(1 a half, 
 
 ^XJotLTrX^ 
 
 masted,^ WWch WS 
 
 swered « I don’e i, .7 ° and tIle pauper an- 
 
 erea, X don t know;*’ upo „ which the master said 
 
 ‘you may as well work for me again, as forTy othTr’’ 
 
 to thetdXe Peragr ^ and Continued to w °rk there 
 At thl d f * year Wlthout an f fr esh agreement, and 
 
 ^hSTpS?^” 8 ,h - th ™ XJ 
 
 “rr 
 
 back to him lT ^ never thou g h t of going 
 
 back to him again, but considered himself as discharged 
 
 “ Wh i “ w “ * "f a. St 
 
 • When the servant desired to be off, it meant from 
 
 beVettored Lh^T^ he d ° eS not claim t( > 
 
 ment bnt l, ^ , 38 a servant u P on ‘he old agree¬ 
 
 ment, but he comes back for his clothes; and then the 
 
 (0 R« *. Kenilworth. * Term Rep. jgj. , nte> 3 g g . 
 
 corn- 
 
397 
 
 Of the Year 9 s Service, 
 
 conversation that took place on both sides is decisive evi¬ 
 dence of a new contract, (i) 
 
 \ 
 
 The second case is, where the servant refuses to per¬ 
 form his contract by reason of the master’s ill usage. As 
 where three days before the expiration of the servant’s 
 year, his master came home in liquor, abused the pauper, 
 threw him down, and afterwards turned him out of doors* 
 The next morning the master would have had him return 
 to his service, and stay the remainder of the year; but 
 the pauper refused, and threatened, that unless he paid 
 him the whole of his wages, he would complain of the 
 ill usage he had received to a magistrate. The master 
 then agreed to pay him his full year’s wages, and he left 
 the service contrary to the express request of his master. 
 Per Lord Kenyon, C. J. It has been urged that this was 
 an absence for a reasonable cause on account of the ill treat¬ 
 ment of the master: but here there was no animus rever- 
 tendi , which distinguishes the present from the class of 
 cases alluded to. The servant was ill used, though he 
 could not have left the service without his master’s con¬ 
 sent, or without applying to a magistrate to be dis¬ 
 charged, yet the master did consent to the servant’s 
 leaving him, and both agreed to put an end to the con¬ 
 tract. Ashhurst, J. The paying the whole wages was 
 not intended to operate as a dispensation of the re¬ 
 mainder of the service, but in redemption of the master’s 
 credit. (3) 
 
 So where a servant, sixteen days before the expiration 
 of her year, was kicked and beaten by her master, she 
 complained to her father of the ill treatment, and in con¬ 
 junction with her father, required her master to dismiss 
 her, under a threat of applying to a magistrate for redres* 
 
 (1) Rex v. East Kennet, Cald. 56Z. (3) Rex v, Grantham, 3 Term 
 
 (a) Ante, 376. Rep, 754, ante, 39r, 
 
 on 
 
 2 . Master’s 
 misconduct 
 
 OO- 
 
 Servant 
 turned out. 
 
 Servant 
 
 beaten. 
 
 V 
 
398 
 
 Of Settlement by Hiring and Service. 
 
 on account of the assault. The master then paid her the 
 whole year s wages, and told her she might serve the re¬ 
 mainder of the year; but she refused so to do, and left 
 he service; this was considered as a clear agreement to 
 put an end to the contract, before the expiration of the 
 jear, on the authority of the foregoing case.(i) 
 
 Finally, where a yearly servant continued to serve until 
 within a fortnight or three weeks of the expiration of the 
 year, when, in consequence of his master’s kicking him 
 .0 would not stay, but went to his father’s houfl; he 
 returned before the end of the year with his father, and 
 received he whole of his wages, and half a crown for 
 himself: his master asked him to stay, but he refused and 
 went back to his father’s house. The year’s service was 
 held incomplete, upon the authority of the two preceding 
 cases. The payment of the whole year’s wages was to 
 pi event an action, and argues no consent on the master’s 
 part to dispense with the service. ( 2 ) 
 
 These cases seem to rest upon the ground of a dissolu-' 
 
 1 1 onby consent, which the second appears to have been • 
 but m the others there was, from what Lord Mansfield 
 calls a witful absence,” a defect in the service, and it 
 
 -Pecially 
 
 ,,, * GrSOtha,n ’ where 11 is found that the pauper 
 Mth^^rvice contrary to the express request his 
 
 *■ UpWe,e> 7 T '™ ** tlu ‘ " ** P-ti e s agr.ee. ,o p„ t an 
 
 Ih^;~ See ^ R “ 
 
 (^} 1-ord Kenyon states however 
 
 1 
 
I 
 
 Of Connecting Services under Several Hirings - 399 
 
 SECT. IV. Part II. 
 
 Of Connecting Services under Several Hirings. 
 
 The 8 & 9 W. III. c. 30. enacts, that the person shall Sameser-^ 
 not only be hired for a year, but continue and abide in vice whjt * 
 the same service for that period. 
 
 A year’s service may be under different contracts of 
 luring, performed with different masters, and in different 
 places. It is therefore necessary to examine how far it is 
 considered as the same , notwithstanding the occurrence of 
 any, or all these circumstances. 
 
 Although 3 & 4 W. III. requires an hiring, and Year’s ser- 
 8 & 9 W. III. service for a year, yet the service need not 
 be performed under the yearly hiring. They must be co- yearly hir- 
 extensive in duration, but need not be cotemporaneous; 
 for the statutes do not expressly declare that the service 
 shall be for that year for which the servant is hired, or 
 even for a whole year afterwards. The words are satis¬ 
 fied, if there be an hiring, and a service for a year; and 
 it is said that the intention is also complied with, “ which 
 « was to prevent persons of no credit from intrud- 
 “ ing into parishes; the hiring for a year being thought 
 « necessary to shew that the person had credit enough 
 « to be hired for that time by a parishioner, who had 
 
 so much confidence in him. And another consideration 
 “ was, the benefit received by the parish from person’s 
 (t labour for a whole year.”(i) 
 
 (1) Per Lee, C. J. citing X,ord Magdalen, Burr. §. C. n6. Rex v. 
 Maccleifield, C. J. Rex v. Fifehead Croscombe, Burr. $.C. 256. 
 
 Service 
 
400 
 
 Of Connecting Services 
 
 Sen r ice therefore under a yearly hiring, will connect 
 with service under other hirings, but subject to certain 
 rules and restrictions. 
 
 Reason of 
 connecting 
 service*. 
 
 Of connect¬ 
 ing the 
 year’s ser¬ 
 vice and 
 hiring. 
 
 This construction was given to the statutes soon after 
 the 8 and 9 W. III. passed (1). It was founded on a 
 strict interpretation of their provisions, which the court 
 would not carry beyond the letter, from an opinion that 
 they were restrictive of the subject’s liberty, and in dero¬ 
 gation of a common law birth-right (2), and that the power 
 given to parish officers should be confined to narrow li¬ 
 mits, since the dread or suspicion of anticipated burthens> 
 by reason of future poverty, might form the sole reason 
 for removing the industrious poor (3). But judges, who 
 have held themselves bound by the authority of this de¬ 
 cision, have questioned its propriety (4). Indeed, the 
 design of the statute seems to point to a contrary con¬ 
 struction; and it has been stated, that the place of set¬ 
 tlement can be of no consequence to the pauper, since he 
 is equally intitled to support wherever it may be. (5) 
 
 But as the law stands settled, if there is an hiring from 
 March to Michaelmas, and then an hiringfor a year , ser- 
 vice, und er the first hiring , may be connected with ser- 
 
 (1) 10 W. III. Rex v. Overton. 
 Purr. S. C. 549. 
 
 (a) Holy Trinity v. Garsington, 
 Cas. Sett, ft Remov. 72. Per Pro- 
 byn, J. Rex v. Fifehead Magdalen, 
 ante, 399. n. (1). Rex v. Aynhoe, 
 post. n. (4). Per Lord Mansfield, 
 Under Barrow and Bradley Field, 
 Burr. S. C. 548. 
 
 Settlements are given as a reward 
 for labour, and the poor-laws in fa¬ 
 vour of them have always been con¬ 
 structed liberally, because they are 
 made in restraint of liberty; every 
 man being anciently free togovvherc- 
 
 16 
 
 ever he had the best probability of 
 maintaining himself. This was de¬ 
 cided by the court in the case of Holy 
 Trinity v. Garsington. Per Lee, J. 
 St. Maurice v. St. Mary Kallendar, 
 % Bott, 158. PI. 203. 
 
 (3) Ante, 250. But the law is 
 altered in this respect by 3jGeo; III. 
 c. 1 or. ante, 253. 
 
 (4) Rex v. Aynhoe. 2 Bott, 251. 
 PI. 298. 
 
 (i) lb. Per Lord Raymond, &e. 
 Per Lord Ellenborough, Rex v. 
 King’s Pyon, 4 East, 351. 
 
 vice 
 
under Several Hirings . 
 
 401 
 
 vice from Michaelmas to the ensuing April, under the 
 year’s hiring, and confers a settlement, although the ser¬ 
 vant leave his place in April, and ne ver fulfils his yearly 
 contract. (1) This is put as one of several parallel in¬ 
 stances to be met with in the books, and which differ 
 from each other in accidental particulars only. (2) 
 
 The mere circumstances of the number and duration ^ urat ; on of 
 
 . . # . the minor 
 
 of the hirings are immaterial to the connection of services, hirings, and 
 provided one is for a year. The rest may be for sue- "^e Mnrices 
 cessive years (3), or months, or even weeks (4). Neither immaterial, 
 is it necessary that the services to be performed under each 
 should be of the same kind. It may be as an out-door ser¬ 
 vant under one, and a family servant under the other (5). 
 
 He may be employed, first, to milk and plough; and se¬ 
 condly, as a carter. (6) 
 
 In most of the reported cases which involve the ques¬ 
 tion of connected service, the minor hirings under which 
 the service was performed have 'preceded the contract of 
 hiring for a year. 
 
 But another question arises, namely, how far service Q u ‘ w, , le " 
 
 . \ J ther such 
 
 under minor hirings, subsequent to the agreement for a service may 
 year’s service, will unite with antecedent service under be subse ~, 
 
 J 7 quent to the 
 
 that agreement. Such a case cannot occur unless there yearly hir¬ 
 ing? 
 
 (1) Rex v. Overton, ante, 400. 
 
 MO- 
 
 (a) Service under a minor hiring 
 for 11 months was held to connect 
 with service for eleven months under 
 an hiring for the succeeding year. 
 Brightwell v. Westhallev, 2 Bott, 
 249 - Ph 296. See also Hanmere v. 
 Ellesmere, 2 Sira. 878. Eardisland 
 <v. Leominster, 2 Bott, 253. PI. 300. 
 Rex v. Under Barrow and Bradley 
 Field, ante, 400. n. (2). Rex v. 
 Croscombe, Burr. S, C. 256. 
 
 (3) Rex v. Croscombe, ante, n. (2). 
 
 (4) Rex v. Bagworth, Cald. 179. 
 Where the minor hirings were by the 
 week, and the wages received by the 
 week, and the pauper considered him¬ 
 self at liberty to part at the end of any 
 one week. Rex v. Sutton, 1 East, 6j6. 
 post. 409. n. (1). 
 
 (5) In Rex v. Great Chilton, 
 5 Term Rep. 672. 
 
 (6) Rex v. Sutton, ante, n. (4). 
 
 VOL* I. 
 
 D D 
 
 I 
 
402 
 
 Collateral 
 determina¬ 
 tion. Rex 
 •v. Grendon 
 Underwood. 
 
 ' Of Connecting Services 
 
 is a dissolution of the original yearly hiring, and an un¬ 
 broken continuance of the service under some other. This 
 may happen within the year for which the yearly hiring 
 was made, as there may be a year’s connected service 
 during that period, and yet not under the yearly con¬ 
 tract ; for the parties may dissolve their original agree¬ 
 ment, and enter into a new engagement on the same 
 day, under which the servant may serve the remainder of 
 his year. 
 
 Thus, if a servant be hired for a year, and having served 
 a month, agrees to serve eleven under a new bargain ; 
 there is an hiring for a year, and connected service for a 
 year, but not under the yearly hiring. Looking to the 
 principle upon which services are allowed to connect with 
 the year’s hiring, there seems no reason why such service 
 should not confer a settlement, unless a voluntary disso¬ 
 lution of the year’s contract prevents the union of succes¬ 
 sive services. 
 
 The various cases in which constructive service is stated 
 to depend, solely upon the circumstance whether there has 
 been a dispensation with service , or a dissolution of the con¬ 
 tract , seem to assume by this statement of the question, 
 that such services do not connect. (i) 
 
 But none of the cases upon the sufficiency of service 
 turn solely upon the point of dissolution. A chasm was 
 created in the service by absence, after the contract was 
 dissolved. (2) 
 
 This doubt, although not expressly decided, seems at 
 least collaterally determined in Rex v. Grendon Under¬ 
 wood (3). The pauper, on the Friday before Michael- 
 mas-day, was hired from Michaelmas to be a carter, and 
 
 (i) Ante, 344. 
 
 (2) Ante, 370. et seq. 
 
 (3) Cald. 359* 
 
 had 
 
under Several Hirings. 
 
 had one shilling earnest, and was to have six pounds wages, 
 and go into his master’s service the Wednesday after 
 Michaelmas-day. The pauper accordingly came that day 
 to his master’s, where he had some refreshment; and his 
 master told him he had hired another servant in the place 
 he had hired him_to do; but that he wanted a man to 
 milk and go to plough, and if he liked that work, he 
 might stay. The pauper thinking himself not well used, 
 refused that service, and the master told him he might 
 keep his earnest, and go about his business; upon which 
 the pauper said, £< Am I at liberty to hire myself to any 
 <£ other person ?” and his master answered him in the 
 affirmative; both the master and pauper looking upon 
 themselves at liberty from their contract with each other. 
 Upon this the pauper left his master’s house, taking his 
 clothes with him, and went to an alehouse about half a 
 mile off, in another parish. In the course of the same 
 afternoon, the master met with him there, and hired him 
 to serve the place of milkman , and to go to plough, and gave 
 him two shillings and sixpence earnest , and agreed to give 
 him six pounds six shillings wages to serve him from that 
 time till Michaelmas; upon which the pauper immediately- 
 entered into his master’s service, and continued therein 
 until the next Febru ary: when his master’s carter having 
 left his place, his master hired him to serve the place of 
 carter from that time to Michaelmas , and gave him one 
 shilling earnest , and agreed to give him ten shillings and 
 sixpence additional wages; and the pauper continued in 
 the service until the Michaelmas, and received his wa<res. 
 
 Here were three distinct hirings, bound by different 
 earnests, and at various rates of wages. The only ques¬ 
 tion raised was, whether the original hiring from .Mi¬ 
 chaelmas was an hiring for a year, with a dispensation of 
 service until the ensuing Wednesday; or whether it was 
 a hiring from that Wednesday, and therefore short of a 
 year by the interval from the preceding Michaelmas. 
 
 D D 2 But 
 
404 
 
 Of Connecting Services 
 
 Rex ?/. 
 Wmtersett. 
 
 But as it was admitted, that the year’s service was com-* 
 plete, the case decides, that service under subsequent 
 minor hirings will connect with that under the original 
 yearly engagement. 
 
 The question might also have arisen in Rex v. Win* 
 tersett (i); but that case was decided on the ground that 
 710 service had taken place under the original hiring . Bul- 
 ler, J. relied particularly upon that circumstance, as form¬ 
 ing the distinction between it and Rex v. Grendon 
 Underwood. 
 
 Rex v, 
 soil. 
 
 Ad- The incompatibility of such services to unite, would 
 also have decided Rex v . Adson (2), in which there was 
 a dissolution of the contract within the year, and an un¬ 
 interrupted service for the remainder under a new agree¬ 
 ment, but the point was not made. The inference, that 
 it was not mentioned because untenable, derives much 
 weight, from considering that the judges originally dif¬ 
 fered in opinion (3). Indeed, no solid distinction seems 
 to exist between contracts which expire by efflux of time, 
 and those which are put an end to by mutual consent in 
 order to let the parties into a- new agreement, and the 
 principle which regulates their connectability in one case 
 seems equally applicable to the other. 
 
 Rules for 
 
 connecting 
 
 service. 
 
 It may perhaps therefore be laid down in general, that 
 services will connect in all cases of distinct contracts, 
 so as to satisfy the statutes where the following rules are 
 observed. ~ ~~~~ 
 
 J. Service 
 
 must be un- y ear g servlce . 
 interrupted, J - —...... 
 
 &c. 
 
 First, the service must constitute one entire unbroken 
 
 Any interruption, though but for a single 
 day, during which the servant is legally exempt from his 
 
 (1) Ante, 378. Buller, J. in Rex v. Alton, as re- 
 
 fa) 5 Term Rep. 98, post. 414. ported, a I 3 ott, aaa. PI. 265. ante, 
 
 (3} See also the observations cf 370, 
 
 master’s 
 
under Several Hirings. 4° 5 
 
 master’s controul, will defeat it. As where a person 
 five days after Michaelmas was hired from thence to the 
 Michaelmas following, on which day he departed Irom 
 his master’s service, and was paid his wages to that time. 
 
 On the day after his departure he returned, and covenanted 
 with his said master to serve him for another year, and 
 lived with him for eleven months.— Per Powis, judge of 
 assize. The services will not connect so as to give a set¬ 
 tlement: there is no hiring for a year , nor service for a 
 year pursuant to the hiring (i). So a person hired ror a 
 year served till within three weeks of the end of it, when 
 with his own consent he was discharged by his master, 
 on some dispute between them. He was absent a fort¬ 
 night, and then went into the service again, at the request 
 of his mistress, his master being from home. Whilst 
 there, and within a week after the expiration of the first 
 year, his master hired him for another year, of which he 
 served six months. The services are not continued as is 
 required by the statute, forthere is a ch asm of a fortni ght 
 between them, during which the servan t was dis charged 
 from his maste r’s servic e. (2) 
 
 \ 
 
 But where the first service terminates, and a new con- Faction of 
 tract is mad e upon the same day, as the law makes no i nte rrup 
 fraction of a dayT uhlessTrTlome~special cases, and the tlon * 
 servant is under his master’s controul by the original 
 agreement for the whole of that time, a departure from 
 service during that day has been held not to amount to 
 such a discontinuance as will disconnect the services. It 
 is only a pause to enable the servant to consider whether 
 he will absolutely quit the service or not (3). Thus, a 
 servant was hired, and lived with his master for three 
 
 (1) Wichford v. Bretford, Fort. (2) Rex v. Caversivall, Burr. S. C. 
 
 311. But the opinion as there ex- 461, ante, 371. 
 pressed seems to go against the con- (3) F® r Lord Kenyon, C. J. in 
 nection of services under different con- Rex v. Grantham, 3 Term Rep. 754* 
 tracts in all cases. 
 
 P5 3 quarters 
 
 1 
 
4 o 6 
 
 Fraction of 
 a day no dis¬ 
 continuance. 
 
 Of Connecting Services 
 
 quarters of a year to Lady-day. On that day he received 
 his wages and left the service. He then went to his 
 father’s house, not having had any discourse with his mas¬ 
 ter about continuing in the service. Whe n he h ad been 
 about an hour with his father, the latter advised hinTTe 
 go to his master, and see hTnTcould not agree with him 
 for a year. He accordingly went thereupon, and agreed 
 for another year, served half of it, and was then turned 
 away. It was held that he gained a settlement; for there 
 was a yearly hiring, and a comp lete year’s servi ce. - It 
 wais not discontinued. The servant was a little doubtful 
 about a new contract; he went to consult his father, and 
 in an hour’s time returned and made one. <£ Upon 
 <e every new contract there is a sort of discontinuance. 
 “ This last day of the former contract is the first day of 
 “ the second service; and this was only an hour’s ab- 
 “ sence within the space of that same day; therefore he 
 “ remained a servant during the whole time of the com- 
 “ pletion of this year.” (i) 
 
 The same point was subsequently determined in another 
 case. On the last day of his year the servant received 
 his wages, took his clothes, and left his master’s house 
 and service. His master came to him half an hour after¬ 
 wards, and desired him to stay with him, but the pauper 
 required a sum for his wages, which the master refused, 
 saying, he should see him presently at the fair. At one 
 o’clock the same day he made an agreement with the 
 master at the fair, and served three months, which was 
 held to connect with his prior service, and make up his 
 year. The only difference between these cases is, that in 
 the last, the pauper made a new contract, and obtained 
 an increase of wages. But there is no abandonment nor 
 discontinuance of the service; the law will not make a 
 fraction of a day. (2) 
 
 (1) P-ex v. Fifehead Magdalen, (a) Rex v. Ellisfield, Cald.4. 
 
 Eurr. S. C. 116. 
 
 In 
 
under Several Hirings. 4°7 
 
 In these instances the contracts under which the service Connecting 
 was performed were express. But it does not make any dcr i mp ii e d 
 difference if the minor contract exists by implication, or contracts, 
 is made conditionally, since service for a year under such 
 hirings would have been sufficient. , 
 
 , , „ , , * . ; * 'i \ j . 4 t « '■ 
 
 The pauper was hired from November till Michaelmas, Service un- 
 at six pounds ten shillings, and two or three days before p n e d hiring, 
 the expiration of his time, his master offered him the 
 same wages for the year ensuing, which the pauper did 
 not think sufficient. On Michaelmas-day they had agreed 
 for wages, all but the expence of washing. The servant 
 had no intention of leaving his master, and he believed 
 his master had no intention of parting with him. He 
 continued in his master’s house, and did what was to be 
 done as usual; neither removing his clothes, nor offering 
 himself to any other master; nor did the latter seek ano¬ 
 ther servant. He considered himself at liberty to have left 
 his master if any better hiring had offered. On the second 
 day after Michaelmas-day he agreed to his master’s terms, 
 and served him for some months, amounting to more than 
 sufficient to make up a year, if this service could connect 
 with that under his former agreement. It was held to do 
 so; for during the time between the first contract and 
 the hiring for a year on the second day after Michaelmas, 
 the servant continued in the same capacity, and did his 
 work as usual. The law therefore implied that he con¬ 
 tinued under the former agreement, and was entitled to 
 receive wages in the same proportion, (r) 
 
 This case may be supported upon another principle, 
 viz. that on Michaelmas-day every thing was agreed upon, 
 except the expence of washing; and as the servant con¬ 
 tinued in the service, the agreement in fact took place on 
 
 v ■* 
 
 (i) Rex v. Sulgrave, I Term Rep. 77 8* See also Rex v. Croscombe, 
 
 Burr. S. C. 456, post. 
 
 dd 4 Michaelmas-* 
 
Of Co?mecting- Services 
 
 Michaeimas-day, bat subject to a condition by which it 
 might be defeated; namely, if the parties could not agree 
 as to the washing. 
 
 vanTmusT' The SecOIld re< l uisite !s > that the master shall have the 
 under ^ ame de^iee of control and authority over his servant 
 
 control, Sec. ^ U1 * :Jfle en ^ re year under all the contracts, as would 
 be necessaiy to give a settlement where the service is per¬ 
 formed under one yearly hiring. 
 
 tab no°ex- . mus ^ contain no special exemption from labour 
 
 emption. either of days or hours, and be subject to the same rules 
 pi ecisely as regulate the contract for a year’s service under 
 the statute of 3 & 4 W. III. (1) 
 
 Weekly 
 hiring to 
 burl cloth. 
 
 A girl was hired under a weekly agreement at weekly 
 wages to bull cloth, and when paid her wages every week 
 on Saturday, w r as told 4 f that she should come the week 
 44 followingwhich she did Accordingly, and renewed 
 the contract for the week ensuing. Here the servant was 
 not under her master’s control from Saturday night until 
 
 Monday morning, and therefore did not gain a settlement 
 by her service. (2) 
 
 But where the pauper hired himself by the week, and 
 nothing was said about Sunday in the contract, but he 
 woikedon that day occasionally, when asked by his master, 
 without receiving any additional wages, only sometimes 
 victuals. He received his wages weekly, and lodged and 
 boarded himself. Having served thus for nine months, he 
 w as hired by his master for a year, as a family servant, 
 and served eleven months. It was held that these ser¬ 
 vices did connect so as to confer a settlement; because 
 nothing being said about Sunday in the hiring by the week, 
 
 (l) Antq, 335, et seq. (a) R ex n) , Wrington, Burr. S. C. 2S0. 
 
 " 5 it 
 
under Several Hirings. 
 
 it is to be inferred that it is included as part of the week, 
 for a hiring by the week must mean the whole week: 
 the servant was under his master’s control therefore dur¬ 
 ing the whole of the week, under each weekly hiring, just 
 as much as he was under that for a year. But it was 
 taken for granted, as beyond doubt, that it he had not 
 been so, the services would not have connected, (i) 
 
 These two rules are nothing more than an application 
 to successive hirings ot' the principle so often referred to, 
 as prevailing universally where the service is under one 
 yearly hiring; namely, that when the contract is discon¬ 
 tinued, and 66 the master has parted with all his autho- 
 “ rity, an interruption in the service incurably destroys 
 u the settlement.” 
 
 Both species of service are subject therefore to the same 
 rules. If the parties agree that there shall be a chasm in 
 the service, and provide for it by an exception in any of 
 the contracts, it defeats the settlement (2). If no such 
 exception is made, but an interval intervene in fact, even 
 from Saturday night to Monday morning (as in the case 
 of burling cloth), it equally destroys it. For this is no 
 more than the common case of absence after a dissolution, 
 where an intention to recommence the relation at a future 
 period avails nothing. (3) 
 
 But absence during the continuance of any minor hiring 
 may be cured in the same manner, and upon the same 
 principles, that apply to cases ol dispensation under one 
 yearly hiring. 
 
 (*) Rex -y. Suttoa, 1- East, 656. 
 Another point was, that the services 
 Hot being ejusdem generis could not 
 be joined. But the court held that 
 his being first an out door and then a 
 
 family servant made no difference in 
 his services so as to prevent it, ante, 
 401. 
 
 (z) See ante, 335. 
 
 (3) Ante, 408. n. (z). 
 
 409 
 
 The 
 
4X0 
 
 III. Must 
 be unmar¬ 
 ried, &c. 
 
 Marriage 
 before se¬ 
 cond yearly 
 hiring. 
 
 Of Connecting Services 
 
 The third rule necessary to render services connectable, 
 does not apply to cases where the yearly contract and ser¬ 
 vice are simultaneous. In this latter case, if the servant’s 
 marriage takes place after an agreement of hiring has 
 been entered into, asettlement is not thereby prevented (i). 
 But it has been held, that the servant must be unmarried 
 at the commencement of that yearly hiring, by which he 
 claims a settlement, as well where the contract is implied, 
 in consequence of service protracted to a second year, as 
 where it is made in express terms. 
 
 The pauper went into service under a general hiring, 
 in the parish of St. Mary, and served there seven months 
 when he married his present wife. After his marriage 
 he remained in his master’s service, in the said parish, 
 four months, when he took lodgings in the parish of St. 
 Giles, and removed thither with Iris wife, where he slept 
 for seven months, and continued to serve his master with¬ 
 out coming to any new hiring. Having served for eighteen 
 months in the whole, he left the service. It was held by 
 the judges, after taking time to consider, that he gained 
 no settlement in St. Giles’s, where he resided the last 
 seven months. 
 
 For 3 W. & M. c. ii. and 8 & 9 W. III. c. 3. re¬ 
 quire that the servant shall be unmarried, and without 
 children at the time of hiring into the parish. There was 
 no residence for forty days in St. Giles’s, under the first 
 hiring, but only for a month. If there had been a resi¬ 
 dence for forty days, the pauper would have been well 
 settled there at the end of the first year. But there was 
 an implied contract of service for the second year, under 
 which he resided in that parish for the last six months of 
 his service. If one had been expressly made at the com¬ 
 mencement of the second year, he could not gain a set¬ 
 tlement under it, as he was married when he made it; 
 
 (1) Ante, 301. et seq. 
 
 and 
 
v under Several Hirings . 411 
 
 and he cannot by an implied contract do that which in 
 express and direct terms he could not do. (i) 
 
 This determination related only to the condition of the 
 servant when hired for the year: but in a subsequent 
 case it is laid down as a general rule, that, “ in order to 
 “ gain a settlement by hiring and service, there must 
 “ be an hiring for a year, and a service for a year, and 
 <e the service for the last forty days must be performed 
 Ci under a contract of hiring entered into when the pau- 
 <£ per was unmarried.” 
 
 . A man being unmarried, was hired for a year, as a 
 servant in husbandry, to live in the house. Two months 
 afterwards he married, and at the end of six months ser¬ 
 vice, put an end to his original contract by coming to a 
 new agreement with his master for a year from that time, 
 thereby agreeing to live out of the house. He removed 
 under this last hiring to another farm, which his master 
 had in the same township , and lived there for two years 
 with his master, and was held not to acquire a settle¬ 
 ment. (2) 
 
 Servant 
 marries be¬ 
 tween first 
 and second 
 hiring. 
 
 Here was a hiring for a year, the person unmarried at 
 the time, service for a year, and marriage during its con¬ 
 tinuance. If the original contract had continued, the 
 servant would have gained a settlement, notwithstanding 
 the intermarriage. This is admitted in argument by all 
 the judges, and expressly relied upon by Lord Kenyon, 
 C. J. who differed from the rest of the court, upon the 
 ground that the first contract was not dissolved. If the 
 reasoning used in the antecedent part of this section be 
 just, it is equally clear that the mere act of dissolving the 
 first agreement by consent, would not prevent the settle- 
 
 (1) Rexv. St. Giles, Cald. 54. 15 East, 347., where the point arose, 
 
 (2) Rex rj. Great Chilton, 5 Term but the case went off upon another 
 Rep. 672. See Rex v. Overnorton, ground. 
 
 ment, 
 
4*2 Of Connecting Services 
 
 ment, for there was an hiring for a year, service under it 
 for six months, and uninterrupted service for much more 
 than the remainder of a year under a new contract (i). 
 The only ground then of the determination is, the cir¬ 
 cumstance of marriage relied upon by two of the learned 
 judges in delivering their opinions (2). Mr. J. Ashhurst 
 states in general terms, “ that if the second be a contract 
 “ distinct from the former one, the services under the 
 i( two cannot be coupled, for the purpose of giving the 
 “ pauper a settlement, because at the time of entering 
 <s into the second he was married.” 
 
 Mr J. Lawrence, confining his opinion to what was re¬ 
 quired by the case before him, declared, “ that the ser- 
 for the last forty days must be performed under a con- 
 (i tract of hiring entered into when the pauper was un- 
 (( married.” (3) 
 
 Observa- The first of these two cases, if literally considered, 
 Rex v! St. goes only to determine, that marriage previous to the 
 Giles, and yearly hiring, under which a settlement is sought, will 
 Great Chil- prevent a servant from gaining it; and the last, that if he 
 ton ‘ is married at the time of the hiring, whether yearly or 
 
 otherwise, under which he serves the last forty days, he 
 cannot acquire one.—But a servant may complete a year’s 
 service under more contracts than two, and may (at least 
 in possibility) marry after entering into the first, and get 
 quit of the disability previous to that hiring under which 
 his final residence of forty days takes place. Thus, in 
 the last case, if the pauper’s wife had died a month or 
 two after he had made his second agreement, and he had 
 then entered into a new one, and served a sufficient time 
 to complete his year, his settlement would not be ex- 
 
 (1) Ante, 401. into the new agreement, the pauper 
 
 (2) Lord Kenyon seems to admit could net gain a settlement, because he 
 in his argument, that if the first cem- was married when he made it. 
 
 tract was put an end to by entering (3) Ante, 411. 
 
 ~ L:o ~ ~ 1 pressly 
 
tinder Several Hirings. 4*3 
 
 presslv decided by these authorities; for he was unmarried 
 at the time of his yearly hiring, which satisfied the first, 
 and also when he made the contract under which he re¬ 
 sided the last forty days, which is all that is required by 
 the second. 
 
 The opinion of Mr. J. Ashhurst however is express; 
 that ii marriage in all cases prevents an union between 
 
 services performed under contracts antecedent and suo- 
 “ sequent tliereto.” 
 
 Rex v. Great Chilton decides, that the servant must 
 be exempt from statutory disability, not only at the time 
 when he is hired for a year, but also when he enters 
 into that agreement under which he completes his year s 
 service; there seems no principle therefore which warrants 
 a less general rule, than what is laid down by the learned 
 judge; namely, that the servant must be unmarried , and, 
 
 (upon the same ground) without unemancipated children , not 
 only at the commencement oj the first , but oj every succeeding 
 contract , under which that year's service is performed , 
 through which he seeks to gain a settlement. 
 
 The next question is, whether any, and what service 
 
 ■ L 1 1 . . «■> -. What ser- 
 
 must be performed under the yearly hiring, tor the pur- v j ce i s ne _ 
 pose of connecting it with service under agreements to 
 serve for a shorter period ? It appears at one time to hiring to 
 have been a received opinion, that there must be a service 
 of forty days under the yearly hiring, because residence hirings, 
 for so long was necessary, to gain a settlement under 
 3 W. & M. c. 4.; and the 8 & 9 W. III. was not in¬ 
 tended to reduce the time of residence required by that 
 statute,- but to increase the service. According to one 
 report, Lord C. J. Parker was of that opinion, as he lays 
 it down, that if « a servant during a whole year is 
 “ hired from week to week, then is hired for a year and 
 « serves one week; this is no settlement, for want of 
 
 “ a con- 
 
4H 
 
 
 Of Connecting Services under Several Hirings. 
 
 “ a continuance in the service forty days after the second 
 “ hiring, (r) 
 
 But this doctrine seems overruled; it being determined 
 in a recent case by the two judges then upon the bench, 
 that service for forty days under the yearly hiring is not 
 necessary, but that service under it for ten days, if coupled 
 with antecedent services under former hirings, confers a 
 settlement, (2). Upon the authority and principle of this 
 case, service for a day, under a yearly contract, will con¬ 
 nect with prior services so as to satisfy the statute. But 
 whether there must not be that day to connect them, is 
 no where expressly decided. 
 
 It would be a strong case, if when there had been twelve 
 
 nings of a month each, and upon the last day of the last 
 
 month, a contract to serve for a year, and no service 
 
 under it, that the servant should thereby acquire a settle- 
 
 ment. It would be a stronger case, although perhaps not 
 
 istmguishable m principle, if an agreement for a year’s 
 
 service should confer a settlement by reason of a distinct 
 
 year of connected service performed in the same parish, 
 
 under several hirings at any interval of time, however 
 
 great. The reasons given in the books for separating 
 
 the service from the hiring, is satisfied in this supposed 
 
 case, as well as where part of the service is performed 
 
 under the yearly agreement. The words of the statute 
 
 are complied with; for there is an hiring for a year, and 
 
 service tor a year. Hie parish has had a year’s service, 
 
 wmen is the consideration of the settlement, and the 
 
 pauper (except in cases of fraud) has found a parishioner 
 
 wno considers lnm a person of sufficient credit to be hired 
 for a year. (3) 
 
 (1) Rex v, Bright>.v&ll, io Mod. 
 387. See also the reasoning of the 
 court in Eardisland v. Leominster, 
 2 Eott, 253. PI. 300. 
 
 (a) Rex v. Adson, 5 Term Rep. 9S. 
 
 The judges, Lord Kenyon and Grose, 
 differed at hrst in opinion, but agreed, 
 after taking time to consider. 
 
 (3) Ante. 
 
 On 
 
Of Service with Different Masters . 41 £ 
 
 On the other hand there is no foreseeing the conse¬ 
 quences of such a decision, and possibly the contract be¬ 
 ing completely executory, and never entered upon, would 
 be considered as not being of that species of lawful hir¬ 
 ing into a parish which the statute requires; perhaps like¬ 
 wise analogy to a recent judicial determination that a resi¬ 
 dence for forty days, to confer a settlement, must be within 
 a year’s compass (i), may warrant the conclusion that the 
 service under different hirings must also connect within 
 the same period, and consequently that there must be at 
 least one day’s service under the year’s hiring. 
 
 But at all events, constructive service under these minor Construc- 
 hirings seems sufficient (2); upon the same principles that *fe n v t lce 
 it is held to satisfy the statute where there has been a 
 single hiring. (3) 
 
 SECT. IV. Part III. 
 
 ■ . .«• ••• j r - 
 
 '■ - 
 
 Of Service with Different Masters. 
 
 Service performed with different masters is an abiding Seivice with \ 
 in the same service, and confers a settlement where the dlfFe l ent 
 
 masters. 
 
 contract continues unaltered in other respects. 
 
 W ji ' v -«■ - -j ^ 
 
 A servant hired for a year, served about half of it, Service with 
 when his master died. The executor asked him, if he > an execucar ‘ 
 was willing to serve him for the remainder of the year, 
 according to the bargain made between the testator and him . 
 
 The pauper assented, and served him in another parish, 
 where the executor lived during the remainder of the 
 year, when he received his wages. It was held that he * 
 gained a settlement in the executor’s parish.—For the 
 act of parliament does not require the service to be the 
 
 (1) Rex -w. Denham , Hil. 5 3 Geo. 3. (3) Rex «£/. Grendon Underwood, 
 
 1 Maule and Selw. 221. ante, 402. 
 
 (2) See Rex •z/.Wintersett, ante, 316. 
 
 ... 4 \« 
 
 same 
 
41 6 Of Service with 
 
 same as to place or person, but only a continuance of the 
 same service. This is a continuance of the same service 
 and not a new contract; the contract was not dissolved 
 by the master's death. The servant was obliged to serve 
 the executor, and the executor to pay him. (i) 
 
 A master dying three weeks after the servant’s year 
 commenced, he continued to serve the remainder with 
 the widow and her sons, by whom the farm was conti¬ 
 nued on, and gained a settlement thereby. (2) 
 
 ^ . \ -• 
 
 Service with So where the pauper being hired as a shepherd to one 
 !>fVfann. ee Knight, for a year from Michaelmas, continued in his 
 service till Lady-day, when Knight paid him half a year’s 
 wages, and left the farm to one Smith, who entered, 
 and took all the stock and servants. In harvest time 
 Smith took the pauper off from keeping sheep,' at which 
 he continued since Knight’s departure, and set him to 
 harvest-work, for which he paid him five shillings ex¬ 
 traordinary, and at the year’s end paid him the other 
 half-year’s wages. Knight, when he left the farm, never 
 told the pauper that he was no more his servant; nor 
 was there any transactions between them towards dissolv¬ 
 ing the contract. Neither did Smith ever make any new 
 contract for the last half year. It was held that this 
 was a continuance in the same service . The original 
 contract with Knight continued, and the service to Smith 
 shall be taken to be a service to Knight; for the servant 
 had never given his consent to change his master, and 
 it could not be done without it, and he had a right to 
 look to Knight for payment of his wages. It resembles 
 the case where a master lends his servant to a neighbour 
 for a week or longer, and he does such work as the neigh- 
 
 (l) Rex v. Ladoek, Burr. S.C. 149* the expiration of his year was a dis« 
 
 (3) Rex v. Hardhorn, 13 East, 51. pensation or dissolution of the contract, 
 Bvit the point argued was whether he ante, 363. 
 being turned away three weeks before 
 
 hour 
 
417 
 
 Different Masters* 
 
 bom- sets him about, he is still in the original master’s 
 service. Knight’s paying him the five shillings in harvest 
 time makes no difference, any more than it the neigh¬ 
 bour in the case supposed had given the servant a gratuity 
 for his trouble, (i) 
 
 Sc where a servant hired at yearly wages to a black¬ 
 smith to be paid from time to time as he wanted, served 
 his master for the year, except that with his master’s 
 consent he worked for a week with one person as a jour¬ 
 neyman blacksmith, and for a fortnight with another, 
 and in a fishing-boat at different times, for a space not 
 exceeding three days altogether. These persons paid the 
 servant for the time he worked with them, it being agreed 
 between him and his master at the time of his absence, 
 that he should have all he earned, and the master to de¬ 
 duct a sum out of his vxiges in the proportion of the 
 time of his absence to that of the w hole year, which v r as 
 done accordingly. Upon these facts it was adjudged 
 that the service was sufficient to confer a settlement. 
 For it is not necessary that the service should be with the 
 same person, it is sufficient if it be with a successor in 
 the farm or an assignee. It is only a licence of departure 
 
 for a certain time; the contract remains; and service by 
 
 •/ 
 
 tlie master’s consent with another person is service with 
 the master. (2) 
 
 But to constitute the same service when the master is 
 changed, the original contract must remain. If that is 
 dissolved, service with a new master under a new con¬ 
 tract, though entered into before the expiration of the 
 original year with the first master’s consent, who pays 
 the year’s wages, is not the same service, nor will it 
 
 ♦ 1 j ' . /'; 
 
 [I) Rex v. Iviugh.oa, 1 Stra. 90. (z) Rex v. Beccles, Burr. S.C. 230. 
 
 aute, 353. ' 
 
 vm.. i. ee* connect 
 
 Service with 
 other mas¬ 
 ters by con¬ 
 sent of the 
 first. 
 
( 
 
 ■ 1 ■ 
 
 Of the Residence by , and Place in, 
 
 connect with that performed under the original hiring 
 
 so as to confer a settlement, (i) 
 
 % 
 
 Some of these cases are mere instances of dispensation 
 with service, and others, of a peculiar direction of the 
 service by the first and only master, and are consider© 
 
 . as such in a former section of this chapter (a). 1 lie y 
 
 are classed together here, only in compliance with a dis¬ 
 tinction usually taken. Some of them are hardly cases 
 of constructive service, since the labour done lor anot er 
 by the master’s direction, is actual service done lor the 
 master himself. None of them are so strong as some 
 dispensations which have been implied from a return to 
 the service after absence without leave. 
 
 In some of these latter cases, the servant left the service 
 without his master’s knowledge, and worked wherever 
 and with whomsoever he pleased, intending to abandon 
 the relation altogether; but in the instances mentioned 
 here, excepting that of the executor, the master allowed 
 of the absence, and permitted the subordinate hiring, so 
 that the parties acknowledged the continuance ot the 
 original contract by the very means which they took to 
 dispense with its being literally fulfilled. (3) 
 
 13 & 14 
 Car. II. 
 c. 12. 
 
 SECT. V. 
 
 Of the Residente by , and Place in "which, 
 
 gained . 
 
 a Settlement h 
 
 The 13 & 14 Car. II. chap. 12. requires a residence 
 of forty days in the capacity of a servant in order to gam 
 a settlement. 
 
 (3) See ante, 350. et seq. 
 
 ? w. in. 
 
 (1) Rex v. Th’.st T eton, ante, 374 * 
 
 (2) See ante, 330. et seq. 
 
a Servant's Settlement is rained. 
 
 o 
 
 3 W. III. chap. ii. and 8 & 9 W. III. chap. 30. 
 make no alteration in this particular, but superadd the 
 requisites of an hiring and service for a year. The pro¬ 
 visions made by the acts of William have been already 
 considered. Those which are connected with the servant’s 
 residence remain to be inquired into. They are three: 
 
 1st. Fne residence must be in a parish or township 
 having overseers. 2d. The servant must reside forty 
 days in that place where the settlement is claimed. 3d. 
 He must remain under the obligation of his yearly con¬ 
 tract during some part of such residence. To these 
 general qualifications may be added, 4th. The enumera¬ 
 tion of some particular disabilities which prevent a settle¬ 
 ment in certain situations. 
 
 1. The laws which provide for the maintenance and 
 removal of the indigent poor, extend only to parishes and 
 townships for which overseers are appointed (1). No 
 settlement therefore can be gained either by residence as 
 a servant, or in any other capacity in extraparochial 
 places where there are 110 overseers. (2) 
 
 The 3 W. & M. c. 11. declares, “ that the servant 
 “ shall be lawfully hired into any parish or town for one 
 64 year.” This may seem to imply, that he should be 
 hired for the purpose of serving a master who resides in 
 such parish or town. But it has been held, that the 
 words 44 parish or town” are only put for example, and 
 that a settlement may be gained under a contract of hiring 
 made in an extraparochial place, by serving where a set¬ 
 tlement can be acquired (3); and the law is the same if 
 the hiring take place in some other country. (4) 
 
 (1) Ante, chap. 2. p. 7. et seq. land for a year, and afterwards come 
 
 (2) Clerkemvell v. Bridewell, I.d. within the year, and live in England 
 
 Raym. 549. Rex v. St. Andrews, the last forty days with his master, 
 Holhorn, Cald. 403. that is sufficient to gain a settlement. 
 
 (3) Rex v. St. Peter’s, Oxford, Fol. Per Eyre, J. Rex */. St. Peter’s ia 
 
 Oxford, ante, n. (3). 
 
 ^ 4 ) As, if a man be hired in Ire- 
 
 The 
 
 419 
 3 w. in. 
 
 c. 11. 8 & 9 
 W. III. c.30. 
 
 The resi¬ 
 dence. 
 
 I. In what 
 place. 
 
 T E 2 
 
420 
 
 IT. The sort 
 ol residence. 
 
 I. Place and 
 time of re¬ 
 sidence. 
 
 Place of re¬ 
 sidence. 
 
 Of the Residence by, and Place in, which 
 
 The forty days ’ residence required by the second rule 
 is to be considered in a two-fold view. ist. The time, 
 place, and nature of the residence. 2 ( 1 . The situation 
 and condition under which the servant resides. 
 
 As to the time and place of residence—He may either 
 reside in one parish or township during his entiie servi¬ 
 tude, or in several. If he reside in different places, he 
 may inhabit, partly where a settlement is to be acquired, 
 and partly where it can not. x 
 
 The residence also may be either during forty running 
 days, or for the same period at different intervals. 
 
 It is evident from the observations already made upon 
 the t 3 & 14 Car. II. and 8 & 9 W. III. that a servant 
 gains a right of settlement by residence in a parish or 
 township for the first forty days of his service, provided 
 he is hired for a year, and serves that period. This right 
 is only inchoate until the entire conditions imposed by 
 these statutes are fulfilled, and when that is done, it be¬ 
 comes complete. 
 
 As a residence for forty days therefore confers h settle¬ 
 ment under such conditions, it follows that it a servant 
 reside for distinct periods of forty days in different pa¬ 
 rishes, his settlement floats during the continuance of Ins 
 year, and is determined by the last residence ol forty days 
 
 _F or eac h residence for that period confers a settlement 
 
 conditionally, and upon the principle already stated, that 
 a latter settlement supersedes the former, it is the resi¬ 
 dence for the last forty days of the year’s service which 
 confers the settlement. (1) 
 
 See Rex v. Ashton, 2 Const. 
 PI. 334. and the reasoning of 
 
 6 
 
 Lord Kenyon, C. J. Rex v. Bright- 
 helmstone, 5 Term Rep 18?. 
 
 Blit 
 
a Servant's Settlement is gained. 
 
 But it may happen that he resides during some part of 
 the year’s service where a settlement may be acquired, and 
 for the remainder where it cannot. Thus if he serve 
 forty days in parish A., and the rest of his year out of the 
 kingdom, or in an extraparochial place, not having over¬ 
 seers, or if he does not reside forty days- in any parish or 
 place except A., he is settled in A.; for he has complied 
 with all the statutory requisites: he has resided forty days 
 under 13 & 14 Car. II.; he has been hired for a year 
 under 3 W. III. and served for a year under 8 & 9 W. III., 
 and the settlement in A. not being superseded by one 
 gained subsequently during his service, he is settled 
 there. (1) 
 
 The residence need not consist of successive days; it is 
 sufficient if they amount to forty in the whole. (2) 
 
 From the determination of this difficulty a new one Last forty 
 arises; namely, what shall be accounted the last forty day , s hm ? 
 
 i ^ * i i p • i ii J reckoned, 
 
 days, r or as the days 01 residence need not be connected, 
 and as the servant may serve less than forty days at a time 
 in one parish, and more than forty in another, and ulti¬ 
 mately complete his residence of forty, by dwelling for a 
 day or two in the first, it remains to determine in which 
 of these parishes he is settled. 
 
 T ■ ■ $ ■ - • N* a, ft •' . i- . x v ' * 1 2 • . ' 
 
 If the last forty days arc reckoned, counting each day 
 backward, or, as it is called, day by day, the settlement 
 will be in one parish. But if the completion of a term 
 of forty days be sufficient, then the place of residence for 
 the last day is alone material, and the settlement will be 
 determined by a different rule. 
 
 (1) Ante, 420. Rex v. Sl An- S. C. 243. I^utj the 13 & 14 Car. IT. 
 
 View’s Holborn, Cald. 403. Rex v. c. 12. Suem^tohave intended that the 
 St. Petei’s in Oxford, Burr. S. G. 412. forty days should be successive- 
 
 (2) Greenwich v. Longdon, Burr. 
 
 E E 3 
 
 421 
 
 / 
 
 Thus, 
 
422 Of the Residence by, and Place in, which 
 
 Thus, if the servant reside twenty days in parish A., 
 and afterwards ten in parish B., and then nineteen days 
 in A.,and thirty again in B., but return and spend the last 
 night of his service in A., the settlement would be dif¬ 
 ferent according to these several inodes ol counting. If 
 the last forty days are reckoned as they run backwards, it 
 would be in B., the servant having resided the last forty 
 out of the last sixty of his service there, and only twenty 
 of that period in A. But if the forty days last completed 
 confer the settlement, then he is settled in A., where he 
 resided the last day. 
 
 The court determined, and not without some doubts, 
 in favour of the latter mode oi calculation, that wherever 
 a settlement can be gained, the place ol inhabitancy for 
 the last day of the year’s service settles the servant, pro*- 
 vided he has resided there forty days in all during his 
 year’s service, (i) 
 
 ,bv i” '• ', , * , ,t / 
 
 Service in But it some times happens that the servant may live in 
 * ne r lace \ one parish, and his service be performed in another. 
 
 residence in t 7 
 
 another. 
 
 The statutes of William refer only to the parish or 
 township in which the service is done, regarding it as 
 the place of settlement. It must be owned that there 
 seems some little anomaly in the law, which connects 
 every other requisite for gaining this species of settlement 
 with the parish in which the servant works, and yet 
 makes the settlement depend upon the place where he 
 sleeps. The reason seems to be, that the latter is where 
 he inhabits; and inhabitancy, both in former statutes 
 
 (i) Lmvess v. Lalistephan, Burr, notis: and the observations of Lord 
 S. C. 825. Rex v. Holland, Doiigl. Kenyon, C. J. and BuUer. J. Rex v. 
 657. Rex w. h'eston, C&ld. 288. Bri^hthelmstone, 5Term Rep. 188. 
 
 2 Bott. 291. PI. 333 - a ud see lb. 292., 
 
 and 
 
4*3 
 
 a Servant's Settlement is gained . 
 
 and in 13 & 14 Car. II. c. 12. is made the criterion of 
 settlement. 
 
 To such a nicety has this rule been carried, that where 
 a house stood in two parishes, and the master lay in pa¬ 
 rish A., where all the service was done, but the maid slept 
 in parish B., she was held settled in B. (1) 
 
 Neither is the master’s knowledge or consent to the 
 servant’s sleeping away from his house material. II the 
 servant marry during service, and sleep with his wife in 
 another parish, unknown to his master (2), he is settled 
 there (3). And whether he sleeps there for successive 
 nights or at intervals, his settlement is in the parish where 
 he lodges the last night, if he has slept there forty in 
 all (4 . Upon the same principle, if he should sleep the 
 last night in a parish where he had first served under his 
 contract of hiring, and has resided there forty days during 
 the entire service, he is settled there. 
 
 Residence 
 unknown to 
 master. 
 
 As to the second consideration, namely, the servant’s Servant's 
 situation and condition during residence, it is in most cases Jjur?ng«- 
 immaterial. It is of no importance whether he dwell on sidence. 
 land or water (5); or for what purpose the master comes 
 into the parish, whether for a permanent residence, or a 
 temporary sojournment. Thus, if the servant spend the 
 last forty days of his service at a watering place, where 
 his master went for the purpose of bathing (6), or at any 
 
 (1) Fevershnm v. Graveney, Fort. 
 121. If a man hath a house within 
 two leets, he shall be taken to be con¬ 
 versant where his bed is. 2 Inst. 122. 
 
 (2; Rex "j. Hedsor, CalJ. 51. Rex 
 1. Nympsfieid, ib. 107. 
 
 (3) Ut in 11. (1). 
 
 (4) Rex v. Great Fool-ham, Cald. 
 29c. and the cases there cited.. 
 
 (3) Rex 'u. Friendsbury, Burr. 
 S. C. 644. Goring v. Moltsworth, 
 I Barnard, K. B. 436. Cas. Set,. Sc 
 Rem. 4x2. 
 
 (6) Rex v. Bath Easton, Burr. 
 S. C.774. 
 
 other 
 
 E E 4 
 
Of ike Residence by, and Place in, which 
 
 other public place, where he is a temporary resident (i), 
 sojourner, or visitor (2), he gains a settlement by inha-, 
 biting there. 
 
 Neither does it make any difference that the master has 
 neither settlement (3), nor real property in the parish 
 where his servant resides, and does not live there. Thus, 
 a man hired to stay and look after horses at an inn where 
 a stage-coach baited (4); a huntsman residing with his 
 master’s hounds (5); a warrener at a warren (6); a groom 
 at a public place, exercising and training his master’s 
 running horses (7)? were held to gain settlements in those 
 parishes which they inhabited, although their respective 
 masters neither resided, nor had houses, nor other local 
 property there. 
 
 So also a residence with different masters, provided the 
 service is sufficient in other respects, will confer a settle¬ 
 ment (8). And these rules apply equally where the ser¬ 
 vice is dispensed with. (9) 
 
 Residence The only distinction taken on the subject is, that if a 
 in sickness servant live apart from his master, from disease and dis- 
 tZZ nt. ability, he shall not be settled in the parish in which he 
 dwells during illness, but in that where lie resided for the 
 last forty days of his effective service. 
 
 There is no express decision upon this point, but the 
 judges have strongly inclined to it, upon the same prin¬ 
 ciple, that a bastard bom in a house of correction, or a 
 
 (1) Alton -v . Elvetham, Burr.S. C. 
 418. 3 Burn’s Just. Tit. Poor. 
 
 (2) Hex St. Peter s in Oxfoid, 
 
 Pol 193* 
 
 (3) Missenden v. Chesham, 2 Const. 
 178. PI. 237. 
 
 (4) St. Peter’s in Oxfoid v. Chip- 
 ying Wyccmb, 1 Stra. 528. 
 
 (5) Bishop’s Hatfield v. St. Peter’s, 
 
 fof. 197* 
 
 (6) Rex v. Eldersley, 2 Const. 274. 
 Pl.315. 
 
 (7) Rex <i'. East Ilsley, Burr. S. C. 
 722. 
 
 ( 3 ) Rex v. Ladock, Burr. S. C. 
 179. 
 
 (9) Rex v.UndermUbeck, 5 Term 
 Rep. 307. 
 
 gaol, 
 
a Servant"s Settlement is gained. 
 
 gaol, is settled, not where it is born, but in the motliei 
 parish (i). Thus Lord Mansfield puts it as a clear case: 
 u suppose a person in service has an accident upon the 
 u road by breaking a leg, and he stays forty days in a 
 « place, shall that be a settlement (2) ?” And where a 
 yearly servant was deprived oi reason about two months 
 before the expiration ol his year, and was then taken 
 fiome by his father into another parish, where he lived 
 until the year expired. The majority ol the court inti¬ 
 mated a strong opinion, that he was settled in the parish 
 where he had last lived with, and actually served his 
 master, and not where he was kept as a lunatic for the 
 last two months oi his year’s contract. (3) 
 
 As the residence may be in different parishes by reason 
 £)jf* a connected service under different conti acts, the next 
 ouestion is, whether that circumstance makes any \aiia- 
 tion as to the settlement. A compliance with the sc\ciul 
 statutory qualifications is required in every palish imo 
 which the servant removes. It is sufficiently obvious, 
 that if there is no more than one contract and one year’s 
 service, they are complied with in each palish in a Inch 
 there is a residence of forty days. But where there are 
 more contracts than one, whether expicss 01 implied, 
 and the servant removes into a new parish subsequent to 
 a ne<£ agreement, it varies the case. A contract foi a 
 year’s service must exist there, and must be connected 
 with the year’s service, the 3 W. & M. c. 11. s. 6. ex- 
 
 (1) Ante, 290. 
 
 (2) Alton v. Elvetham, ante, 424. 
 r.. (1). Rex v. St. James in Bury 
 St. Edmunds, 12 East, 25. Rex v. 
 Thatcham, Ilud. Index. 
 
 (3) Rex v, Sutton, 5 Term Rep. 
 657. See Rex v. Sherrington, Child. 
 471. where the point was not taken 
 So an apprentice was held not to gain 
 4 settlement by inhabitancy during 
 
 sickness. Rex v. Titchfield, Burr. 
 S. C. 511. et post, and the 26 Res. of 
 Judges 1633. Da If. 23. ante, 
 supports this construction. See the 
 cases cited cu tnis subject, post. chap, 
 xxi. s. 5. But 13 Sc r4 Car. II. c. 12. 
 3, 3. seems to take it for granted that 
 a settlement might be gained by a so¬ 
 journer failing sick or impotent. 
 
 presslv 
 
 Must 
 
 under 
 
 yearly 
 
 tract. 
 
Of the Residence by, and Place in, 'which 
 
 pressly enacting that the person shall be hired into the 
 parish or town for a year (i). Thus, if there has been 
 an hiring for a year, and service under it in parish A., and 
 at the expiration of the year’s service, the master and 
 servant remove into parish B. where the servant serves 
 for a whole year under express weekly hirings, he gains no 
 settlement in B., because there is no yearly hiring there, 
 although there is an yearly service. 
 
 But where a servant was hired for a year, and having 
 served it, continued to live with his master in the parish 
 in which he was so hired for above a quarter of a year 
 longer without coming to any new agreement, and then 
 the master took a house in a different parish, to which 
 the servant removed with the rest of the family, and lived 
 under the first contract for six months more, and was 
 paid the same wages in proportion to his time, it was held 
 that he was settled in his second parish. (2) 
 
 For a second hiring was necessarily implied at the com¬ 
 mencement of the second year, by virtue of which the 
 pauper lived in the second parish; and although the ser¬ 
 vice was not completed under it, yet as there was an 
 hiring for a year in that parish, and continuance of the 
 same service in another, the impediments created by the 
 statutes of William were removed, and the pauper’s resi¬ 
 dence for the last forty days determined his settlement 
 upon 13 & 14 Car. II. as it would if these acts had 
 never passed. (3) 
 
 It seems immaterial in this case whether a second hiring 
 
 i a 
 
 was implied in the first parish; because, although there 
 was then but one contract during his residence in both 
 
 (1) See ante, 419. (3) It may be necessary to apprize 
 
 (2) Rex v. Crosccmbe,Burr. S. C. the reader, that this is the author’s 
 
 256. See also the opinion of Ash- inference from the case, and put par- 
 hurst, J. Rex v. Sulgvave, 1 Term tially collected from the reasons, as- 
 Rep. 778. signed for the judgment in the report. 
 
 * parishes, 
 
a Servant's Settlement is gained. 
 
 4*7 
 
 parishes (1), yet, as it was for more than a year, and ac¬ 
 companied the servant’s person wherever he resided du¬ 
 ring its continuance, he lived in the second parish under 
 a yearly hiring. 
 
 But although a contract cannot be considered as run- 
 jiing into a new parish after it has expired, yet it has been 
 already shewn, that service under an hiring in one pa¬ 
 lish will connect with service under a new yearly con¬ 
 tract in another, and confer a settlement if there is a 
 year’s service complete, and a residence of forty days (2). 
 For the principle of connecting service has no reference 
 to the duration of prior or subsequent contracts, but to 
 the contiguity of service, and the absolute control of the 
 master. 
 
 It follows from these positions, that a servant may gain Settlement 
 a settlement under a hiring and service in one parish, who ^ledln A, 
 cannot do so by service with the same master if he removes 
 into another, and lives under a different, yearly hiring, the same 
 For he may labour under incapacities at the time of the y ^ rly hir " 
 second hiring, from which he was exempted during the 
 first. Thus, if a servant be unmarried at the time he is 
 hired for a year, he acquires a settlement by service, and 
 forty days’ residence under that year’s hiring, in every pa¬ 
 rish into which he removes, although he marries imme¬ 
 diately afterwards (3). But if he marry during his first 
 yearly contract, and then make one for a new year, he 
 cannot gain a settlement in a new parish by subsequent 
 service under the last agreement, by reason of his dis¬ 
 ability whenitw r as made. (4) 
 
 It should seem further (although the point has never 
 come directly before the court ', that he might acquire a 
 
 (1) The case found that the servant 
 continued to live with his master un¬ 
 der the first contract. 
 
 (2) Ante, 399.; nnd Rex v, Cros- 
 combe, ante, 426. 
 
 (3) Farringdon v. Witty,Salk.527. 
 2 Boct. 301. PI. 339., ante, 301.’; and 
 the cases cited, n. (1) 
 
 (4) Rex v. St. Giles, Reading, 
 Cald. 54. 
 
 settlement 
 

 428 Of the Residence by , and Place vi 9 which 
 
 settlement in the first parish by service in the second, un¬ 
 der this latter contract, although he could not acquire 
 one in the second. Thus, suppose him unmarried, and 
 hired for a j r ear in parish A.; at the end of six months he 
 marries; then dissolves his original contract with his mas¬ 
 ter’s consent, and enters into a new one for a year, but 
 does not interrupt the service. He forthwith removes to 
 parish B. and continues to live there with his master for 
 more than a year. He gains no settlement in B. (1); but 
 
 he seems to have obtained one in A. For there was an 
 
 ■ . * • < 
 
 hiring for a year while unmarried, with residence forty 
 days in A. and a year’s service complete. This service ot 
 the last six months in a parish where he could not gain 
 settlement, is like serving in an extraparochial place 
 which does not defeat the inchoate right of settlement (2), 
 none being subsequently gained by which it can be 
 annulled. 
 
 > J . ' 
 
 Of residence It having been determined also in Rex v. Adson (3), 
 abilities 1S " that the forty days’ residence need not be within the year’s 
 hiring, it seems as if a settlement may be gained m the 
 new parish, if a yearly contract subsists there for a single 
 day, and the servant reside forty days under a contract 
 entered into when exempted from statutory disqualifica¬ 
 tions, provided it is sufficient for the purpose in other re¬ 
 spects. Thus, if he serve his whole year but one day in 
 A. and serve that one, and thirty-nine more in B., under 
 an express hiring for three months, he seems settled in B. 
 Fpr a contract for a year’s service subsists while he serves 
 there, and the period of service under it is immaterial; 
 there is connected service for a year, and residence of 
 forty days under a contract made, while he labours under 
 none of the disqualifications created by 3 W. III. an^l 
 8 & 9 W. III. It is this last circumstance which distin- 
 
 (1) Rex i'. Great Chilton, 5 Term 2 Bott. 292. PI. 334. Ante, 419. 
 
 Rep. 672. n. (4); and the cases there cited. 
 
 (2) Rex v. St. Andrew’s Hclborn, (3) 5 Term Rep. 9?. Ante, 414. 
 
/ ^ 
 
 a Servant's Settlement is gained . A *9 
 
 guislics this supposed case from Rex v. St. Giles (i), and 
 the latter from Rex w. Adson (2). In Rex v. St. Giles, the 
 pauper being an unmarried man, served under a geneial 
 hiring in Sherborne for seven months, when he married, 
 and continued there in his master’s service foi four 
 months more; he then took lodgings in St. Giles s, re¬ 
 moved there with his wife, and slept in the parish for 
 seven months, during which time he continued to serve 
 his master without coming to a new hiring, so that he 
 served eighteen months in all; viz. eleven in Sherborne, 
 and seven in St. Giles: the first month ct the lattei 
 was under the old hiring, and the remaining six under 
 a new one, implied from his continuance in the service. 
 
 Mr. J. Willes, who delivered the judgment of the court, 
 was of opinion that had he resided forty days in St. 
 
 Giles, under the first hiring, he would have been 
 settled there; but having resided no moie than thiity 
 under it, and the remainder under a new hiring he 
 
 gained none. 
 
 This decision seems only to be reconciled with that in 
 Rex r. Adson upon the principle laid down as a neces¬ 
 sary qualification in all cases of residence, by Mr. J. Law¬ 
 rence, in Rex v. Great Chilton, that service for the last 
 forty days must be performed under a conti act ofhiiing, 
 entered into when the pauper was exempt from those dis¬ 
 abilities which are created by statute. (3) 
 
 Upon the whole, therefore, it may be concluded, that.^ 
 a yearly hiring must either be originally entered into, or 
 at least exist in the particular parish to confer a settle¬ 
 ment and that there must be a year’s service connected 
 with this hiring. 
 
 But the further point was still left undetermined by Of residence 
 these decisions, of how far interrupted residence ot less 
 
 (1) Ante, 411. n. (i). (2) Ante, 438. n. 3, (3) Ante, 4 12 - 
 
 than 
 
/ 
 
 43 ° 
 
 under dis¬ 
 tinct yearly 
 hirings. 
 
 \ 
 
 Of the Residence by, and Place in, which 
 
 than forty days under distinct hirings for a year and 
 occurring at a greater interval than a year, could be 
 connected ? This lias been recently determined in the 
 following judgment. 
 
 Lord Ellenborough, C. J. .The question was upon 
 the residence necessary to confer a settlement by hiring 
 and service, whether it was necessary there should be 40 
 days’ residence within the compass of a year; or whether 
 if the service was for several years uninterruptedly, a re¬ 
 sidence of 40 days within these several years would be 
 sufficient. The facts were these. The pauper was hired 
 for a year to G. S. and served that year: at the expira¬ 
 tion of which he was hired to him for another year and 
 served half of it; and during that year and a half he was 
 resident at Basingstoke for 40 days, but he did not reside 
 in B. for 40 days either within the first year or within 
 the half year, nor (as was admitted) within any one pe¬ 
 riod of a year while he continued with S. r I he sessions 
 were of opinion that this residence was not sufficient, and 
 we think their opinion right. By stat. 13 & 14 Car. IT. 
 c. 12. s. 1. poor persons coming to settle in any parish if 
 likely to be chargeable to the parish, may he removed 
 within 40 days after they so come to settle as aforesaid; 
 and it is under this act that 40 days residence is required. 
 By stat. 1 Jac. II. c. 17. s.3. the 40 days’ continuance in 
 a parish intended by the statute 13 & 14 Car. II. to make 
 a settlement, shall be accounted from the delivery of 
 notice in writing to one ol the officers ol the parish to 
 which such poor person removes; which notice by stat. 
 3 & 4 W. & M. c. 11. s. 3. is to be read in church the next 
 Lord’s day, and registered in the book kept for the poor 
 accounts. By the same stat. s. 7. If any unmarried 
 person not having any child or children shall be lawfully 
 hired into any parish or town for one year such service 
 shall be adjudged a good settlement therein, though no 
 
a Servant's Settlement is gained . 
 
 uch notice in writing be delivered and published as afore¬ 
 said,” and by stat. 8 & 9 W. III. c. 30. s.4. “ No per¬ 
 
 son so hired as aforesaid, shall be adjudged to have a 
 good settlement in any such parish or township unless 
 such person shall continue and abide in the same service 
 during the space of one whole year.” Upon these clauses 
 settlements by hiring and service now stand. It has been 
 decided, that so as there is a hiring for a year and service 
 lor a year, it is not necessary the whole of the service 
 should be under the yearly hiring; but service not under 
 a yearly hiring may be connected with service under a 
 yearly hiring; and both services, if uninterrupted, maybe 
 taken into the account: but it has never been decided 
 that residences beyond the compass of a year can be 
 connected; and as the legislature by requiring an hiring 
 for a year, and a continuance and abiding in the same 
 service during the space of one whole year, seem to have 
 contemplated something which was not to be complete 
 in less than a year, but was to be complete within that 
 period ; we think we abide most closely by the words, and 
 give effect to the most probable intention of the legisla¬ 
 ture, by holding that the whole residence must be within 
 the compass of a single year. Suppose the same service to 
 continue uninterruptedly for 20 years, and the servant to 
 sleep twice in every of such 20 years at the same inn in 
 travelling, and to be at that inn the last night of his 
 service, would it be expedient and reasonable that an 
 enquiry extending over so long a period of time at de¬ 
 tached intervals, should be gone into for the purpose 
 of ascertaining the settlement of a pauper? What notice 
 could the officers of that parish have had that he was 
 come to settle there? And yet there his settlement would 
 be if we were to hold that residence for 40 days beyond 
 the compass of a single year would do. We are there¬ 
 fore of opinion, that a settlement in B. in this case was 
 not established.” (1) 
 
 (1) Rex v. Denham, 1 Maule and Selw. zzi . 
 
 7 Par- 
 
 43 1 
 

 432 
 
 IV. Of I«r- 
 ticular dis- 
 ni-iiities by 
 statute. 
 
 Of the Proofs necessary to support 
 
 Particular disabilities, whicli prevent the settlement o\ 
 servants in certain situations, are created by the following 
 statutes : 
 
 i. By 9 & io W. III. c» 11. Servants coming into a 
 parish under a certificate shall gain no settlement there,, 
 unless they take the lease of a tenement of the value ot 
 ten pounds a year, or execute some annual ofiicc there, (i) 
 
 
 
 
 
 2. By 12 Ann. st. i. c.i8. s.2. Persons hired, and 
 living with persons who reside in the parish under a cci- 
 tificate. (2) 
 
 m . y.» 
 
 . 3. By 33 Geo. Hi. c.54* sect* 24* Servants to a 
 member of a benefit society. (3) 
 
 4. By 13 Geo. II. chap. 29. sect. 7. No child, nurse, 
 or servant received, maintained, educated, or employed 
 within the Foundling Hospital, shall gain any settlement 
 in the parish or place where such hospital is situate, !>} 
 virtue of such their reception, continuance, hiring, or 
 residence in such hospital. 
 
 5. By 9 Geo. III. c. 31. s. 8. No person who shall 
 be admitted into the Magdalen Hospital as a penitent 
 prostitute, or who fliall be employed therein as an hired 
 servant, shall, by reason of such admittance or service, 
 gain a settlement in the parish in which the said hospital 
 is, or shall be situate. 
 
 SECT. VI. 
 
 Of the Proofs necessary to support this Settlement . 
 
 To establish a settlement by hiring and service, it is 
 necessary to prove. 1. An hiring lor a year. 2. Service 
 for a year. 3. Residence of forty days. 
 
 (1) Post. Vol.ii. char, xxviii. part %. (a) Ibid. (3) See Append. 
 
 Where 
 
433 
 
 Settlement by Hiring , <Jr. 
 
 Where the agreement is in writing, it is generally ne¬ 
 cessary to produce the written instrument; but a copy or 
 parol evidence of the contents may be given in evidence 
 in two cases(i)—ist, Where the writing cannot be 
 found. 2d, Where it is in the custody of the adverse 
 party, who refuses to produce it after being served with 
 a proper notice. 
 
 Where the agreement is not in writing, evidence may 
 be given of the actual terms of the contract, or it may be 
 inferred from what passed at the time of hiring (2), or 
 from the mere fact of service. 
 
 Thus, where the pauper proved 44 that her husband 
 44 was abroad beyond sea, and had been so for two years 
 * 4 past if alive; that to her knowledge he lived in the 
 
 44 capacity of an ostler with Mrs. L-, of the parish of 
 
 u H-(some years since deceased), about two years, 
 
 44 where she had seen him brew; but 'whether there was 
 \* any agreement or hiring relating to such service was not 
 u proved but she had heard her husband say he was 
 %i settled in the parish of H.” The court was of opinion 
 that the sessions were right in drawing the conclusion, 
 that the husband was settled in H.; for although the 
 evidence of hiring was slight, there was nothing to con¬ 
 tradict it. (3) 
 
 So where the pauper was seen, and known to be in the 
 service of C. as a servant in husbandry, and to act in that 
 capacity for upwards of a year, it was held sufficient evi- 
 
 (1) Rex i/. St. Sepulchre’s, Cald. (2) Ante, 307. 323. 
 
 J47. This point will be discussed (3) Rex 1/. Holy Trinity in Ware- 
 more fully in treating of the produc- ham, Cald. 141, Ante, 323. et seq. 
 tion of indentures of apprenticeship 
 under that species of settlement. 
 
 vol. 1. ff dence 
 
 Hiring hovr 
 
 proved. 
 
 Written, 
 
 Parol. 
 
 Inferred 
 from what 
 circum¬ 
 stance ? 
 
 4 
 
I 
 
 , ri Of the Proofs necessary to support 
 
 dence to enable the sessions to draw the conclusion of his 
 having been in fact hired for a year. (i) 
 
 Likewise where the pauper having served 9 years as a 
 cotton-worker, under unstamped articles of agreement, 
 continued to serve his master for 4 years longer, without 
 coming to a new agreementit was held to warrant the 
 sessions in presuming from the fact of a service, for four 
 years at wages, though not specified, that such service 
 was under a hiring for a year, there being nothing 
 to repel the presumption. (2) 
 
 Presump- This however is only presumptive evidence, and there- 
 'j”™’ fore liable to be rebutted by the peculiar circumstances 
 of each particular case. (3) 
 
 Such presumption, however, is not destroyed by 
 the servant having originally agreed for a period Ihort of 
 a year, if she afterwards live in the same service for a 
 year, or more. As where a female servant was at first 
 only’hired from March till Michaelmas following, but. 
 continued in the same service for three years,^ it was 
 deemed sufficient evidence to warrant the justices in find¬ 
 ing a hiring for a year. (4) 
 
 So where the pauper, a fortnight after old Michaelmas 
 
 \ 
 
 (1) Rex v. Lyth, 5 Term Rep. 
 327. Lord Kenyon laid some stress 
 on this being the case of a servant in 
 husbandry; but the subsequent de¬ 
 cisions here referred to, respect 
 female servants. 
 
 (a) Rex v. Pendleton, 15 East, 449. 
 ante. 
 
 (3) Utin n. (t). 
 
 (4) Rex v. Long Whatton ,5 Term 
 Rep. 447. In ^is case there was no 
 evidence to prove the original hiring 
 
 to have been for less than a year, 
 except the pauper’s declaration to third 
 persons, she being insane at the hear¬ 
 ing of,the appeal. But Lord Kenyon 
 observed that, independent of the 
 pauper’s declarations, the evidence 
 was sufficient to warrant the inference 
 of a hiring for a year, for though the 
 pauper was at first only hired till the 
 Michaelmas following, yet she con¬ 
 tinued in the same service for three 
 years. 
 
 *5 
 
 17 92 , 
 
Settlement In/ Hiring , §c. 
 
 s 79 2 j heard from Miss G-- that her father wanted a 
 
 servant, and agreed with her to go a month upon liking; 
 she went accordingly, and in the spring following, Miss 
 
 G -told her, that if she behaved well, and did her 
 
 I work properly, she should have four pounds for a year. 
 
 Tiie pauper continued in Miss G-’s service, without 
 
 ' an y ot}ier agreement , until Christmas following, when she 
 quitted it. About a fortnight after Michaelmas 1793, 
 .she received four pounds for a year’s wages then due, and 
 for the remainder of the service from that time, eighteen 
 pence a week, being the proportion of wages then due at 
 the rate of four pounds per annum. Lord Kenyon, C. J. 
 “ At present the case is so imperfectly stated, that we 
 cannot give any judgment upon it. A retrospective hiring 
 certainly is not sufficient to confer a settlement; but as 
 the pauper continued in the same service after the expira¬ 
 tion of the first year, there was abundant ground for the 
 justices to have presumed a hiring for a year from that 
 time.” (1) 
 
 It seems in this case as if service, although for less 
 than a year, might, under particular circumstances, be 
 held sufficient evidence of a yearly contract. It does 
 not appear whether the presumption was considered as 
 helped by the antecedent service under a retrospective 
 hiring (2). But the conclusion is evidently more strong 
 in cases where there has been a prior service, and hiring 
 
 for a year (3), and it is not affected by the servant’* 
 quitting his place during the year. (4) 
 
 J* ; » ,l ~***( 1 v • -*■ J' • J ’ Tl'ijJOO 
 
 (if Rex v \ Hales > 5 Term Rep. or at least to help the inference con- 
 668. Ante, 22$. n. (2). siderably, 
 
 {%) The declaration that the ser- (3) Rex Croscombe, Burr, 
 rant “ should have four pounds for a S. C. 2 j 6 . Ante, 342. 
 year” seems to imply a yearly hiring, (4) Rex Hales, u‘t supra. * Ante, 
 
 325. n. (1). 
 
 FF 2 
 
 Where 
 
Of the Proofs necessary to support 
 
 Year’s ser- Where service for an entire year cannot be directly 
 vke r proved, it seems fair matter of inference from evidence 
 f@ rC of a yearly hiring, and service done under it, although 
 the witness’s recollection does not enable him to point 
 out its precise duration. 
 
 Residence. Residence of forty days may likewise be inferred from 
 the fact of service. 
 
 All matters which go to avoid a settlement are properly 
 the party’s evidence who seeks to impeach it, and con- 
 stitute his case. 
 
 But the facts necessary to establish or overthrow this 
 species of settlement are seldom left to inference. The 
 witnesses usually called are qualified to give direct testi¬ 
 mony of the fact. Such are the pauper or his master ( 
 their wives and fellow servants j for all persons may be 
 Witnesses witnesses who are not affected by the following grounds 
 
 who may be of incompetency: 
 incompe¬ 
 tent. . _ 
 
 imbed Imbecility of understanding—Such are ideots and 
 
 lky. m ea ’ lunatics, while under the influence of their malady, (i) 
 
 , r 2. Want of religious belief—Such are children under 
 2. Infidelity. * ° . . . . . .. c 
 
 fourteen, if unacquainted with the obligation oi an 
 
 oath (2). Infidels professing no Religion that can bind 
 
 * their conscience (3). But pagan si are not incompetent, 
 
 if sworn according to the custom and manner of their 
 
 country (4); nor any other persons who believe in God, 
 
 • 1 
 
 / 
 
 (1) See Bull, L. N. P. 293. (3) lb. * 9 *- Co. Lit. 6. White’s 
 
 (a) Brazier’s case, Bull. L. N. P. case, Leach’s Crown cases, 337. 
 
 293. See also the cases collected, (4) Ormichund v. Barker, 1 Wils. 
 I East. Cro. Law. 441. But this 84. 1 Atk. 19. Fachina w. Sabine, 
 objection arises partly from the im- 2 Str. 1104. 
 docility of the infant’s understanding. 
 
 - ill 
 
437 
 
 Settlement by Hiring , fyc. 
 
 in the obligation of an oath, and in a future state of re* 
 wards and punishments. (i) 
 
 3. Persons convicted of an infamous crime; such as 3- Infamy, 
 treason, felony without benefit of clergy (2), perjury, con¬ 
 spiracy, barratry, attaint of false verdict, &c. (3); and 
 to render them incompetent, judgment must be entered, 
 and exist at the time, and must be proved by producing a 
 copy thereof, formally authenticated. (4) 
 
 On an appeal against the removal of a wife and chil¬ 
 dren, the respondent, to prove the settlement, produced 
 the husband in the gaoler’s custody, who admitted that 
 he had been convicted of grand larceny at the preceding 
 great sessions at Cardigan, and that he had prayed the 
 benefit of the statute, and was then suffering the punish¬ 
 ment of 12 months’ imprisonment. But the record of 
 such conviction was not produced. The court of king’s 
 bench held that the record not being produced, he was 
 an admissible witness. For his conviction can only be 
 known by the record, and there is no authority for ad- 
 
 (1) Rex v. Taylor, Peake’s Ni. Pri. v. Smallbrooke, i Sid. 51, (7). a 
 Cas. 11. Hawk. ch. 46. s. 20. 3 Com. Dig. 
 
 (a) By 31 Geo. III. c. 35. No per- Evidence, 280. 5 Com. Dig. Test- 
 
 son shall be incompetent as a witness moigne, 516. Bull. L. N.P. 292. 
 by reason of a conviction for petty lar- But qutere whether the witness may 
 cen)'. When the felony is within not be asked, in order to discredit him 
 clergy competency is restored by the although not to render him incompe- 
 burning in the hand ; for it is a statute tent, whether he has not been con- 
 pardon, Rex <v. Count de Castlemain, victed, and suffered the judgment of 
 after consulting the judges of C. B ; the la.v. A man appeared to bail one 
 'I.Raym. 379, 3 St.Tr. 36. 4St.Tr. charged with grand larceny, the coun- 
 393 - *> an d tee cases there cited. And sel who opposed the justification, was 
 now by 19 Geo. HI. c. 74. if persons permitted to ask, whether he had i;rt 
 convicted of a clergyable offence be stood in the pillory for perjury, for it 
 fined or whipped^ their competency is could not subject him to any punish- 
 r*stored. ment; and he, admitting"the fact, was 
 
 (3) Pehdockr. Mackinder, 2Wils. rejected. Rex v. Edwards, 4 Term 
 
 Rep. 440. See also Rex v. Priddle, 
 
 (4) Lee v. Gansel, Gawp. 3. Wilkes 2 Leach, Cr. Cas. 496. 
 
 FF 3 
 
 mittiiig 
 
43* 
 
 4. Relation¬ 
 ship. 
 
 5. Interest. 
 
 Of the Proofs necessary to support 
 
 mitting parol evidence of it. Per Lawrence, J. The 
 books are uniform in requiring the production oi a record 
 to prove a witness convicted of an offence. (1) 
 
 J * 
 
 But the objection may be removed by a pardon under 
 the great seal (2), except in cases where incompetency is 
 part of the punishment, as in convictions for perjury on 
 5 Eliz. c. 9. (3) 
 
 r ? •. % ♦ ! • j: •. ’ CSC i 
 
 The fourth general ground of incompetency is that of 
 relationship; but as that extends to no case beyond the 
 connection of husband and wife when interested in the 
 suit, and as there are usually no other parties to questions 
 of settlement but parishes or townships, this species of in¬ 
 competence can seldom arise, unless where it involves the 
 question of marriage, and then the wile shall not be ad¬ 
 mitted to give testimony that may even collaterally affect 
 and criminate her husband (4); and this perhaps although 
 a divorce has taken place. (5) ; * 
 
 The fifth, and only remaining ground of incompetency, 
 arises from a witness being either actually interested m 
 the event of the suit in respect of a benefit or prejudice 
 which is to arise directly from thence, or else from con¬ 
 ceiving himself to be in that situation (6). This, in cases 
 of settlement, is narrowed to being rated, or paying pa¬ 
 
 ri) Rex v. Castell Careinion, 8 East, 
 77 - 
 
 (2) Rex v. Gully, Leach’s Crown 
 Cas. 115. Rex v. Reily, a Leach, 
 Cr. Cas. 509. 
 
 (3) Rex v. Crosby, Salk. 289. 
 
 (4) Ante, 269. and the authorities 
 
 cited in the notes. 
 
 (5) Of facts happening during the 
 
 coverture, Semb. per Lord Alvanley. 
 Monroe v. Twisleton, Peake s Law of 
 Evid. App. 44 * 
 
 (6) Per Lord Ellenborough, C. J. 
 Howard v. Shipley, 4 East, 181. See 
 also Fotheringham <y. Greenwood, 1 
 Str. 129. But in the latter case an 
 interest arising from an honorary and 
 not a legal engagement, was held suf¬ 
 ficient to render the witness incompe¬ 
 tent. Likewise an anonymous case, 
 cited by Cowper, arguendo. Rudd s 
 case, 1 Leach Cr. Cas. 154* See also 
 Rex v. Woburn, 10 East, 395 * 
 
 c 
 
 rochial 
 
439 
 
 Settlement by Hiring , fyc. 
 
 rochial taxes in that parish or place by which the party is 
 produced in evidence; for persons rated are interested as 
 contributing to the maintenance of paupers settled in their 
 parish, and also as liable to the costs of appeals respect¬ 
 ing them. (i) 
 
 They cannot be witnesses if directly liable in the first 
 instance, as parties in the cause for costs, although entitled 
 to be reimbursed such costs out of the parochial fund (2). 
 But upon appeal against an order of removal, where it 
 was objected to the competency of a witness, that he was 
 assessed to the parish rates, Lord Mansfield thought it a 
 sufficient answer, that an agreement appeared between the 
 landlord and tenant, that the former should indemnify 
 the latter from the assessment, for the tenant had a right 
 to deduct it out of his rent; therefore the sessions oimht 
 to have heard him. (3) 
 
 This objection however is confined to the case of per¬ 
 sons actually rated or paying; parishioners are otherwise 
 good witnesses, and may be compelled to give evidence, 
 although liable to be included in future rates (4), and 
 
 (1) Rex v. Governors of St. Mary 
 Magdalen, Bermondsey, 3 East, 7. 
 Rex v. Little Lumley, 6 Term Rep. 
 468. 
 
 (2) Rex v. Governors of St. Mary 
 Magdalen, Bermondsey, supra, (i) 
 
 (3) Rex •v . Woodland, 3 East, 11. 
 I Term Rep. 261. 
 
 (4) Rex hj. Prosser, 4 Term Rep. 
 17 • Semb. Rex'y.Gisburn, 15 East, 
 57. Note the question of competency in 
 this case, and those cited, supra, n. (1), 
 arose upon Appeals against Po®r Rates; 
 but the principle applies equally to or¬ 
 ders of removal, and was so decided, 
 Rex v. South Lynn, 5 Term Rep. 664. 
 Rex v. Kirdford, 2 East, 559. and see 
 the case of a parishioner liable to a rate. 
 
 held to be admissible in a question of 
 boundary between the adjoining parish¬ 
 es. Deacon v. Cock, Taunton spring 
 assiz. 1789’ cor * Buller, J. Upon appeal 
 against an order of removal, the appel¬ 
 lant’s township produced one of its in¬ 
 habitants as a witness, who stated upon 
 the •uoirdire that he occupied a cottage 
 there of the annual value of 25 shillings, 
 but that he was not rated to, nor paid 
 any public rate or tax. Such answer 
 must be taken to be true for the pur¬ 
 pose, and it cannot be objected to his 
 examination in chief, that the best evi¬ 
 dence of the fact was not given by the 
 production of the rate itself. Rex <1/. 
 Gisburn, 15 East, 5. 
 
 F F 4 
 
 » 
 
 Parishioners 
 when com¬ 
 pellable to 
 give evi¬ 
 dence. 
 
 omitted 
 
44 © 
 
 / . 
 
 46 Geo. III. 
 
 c. 37 - 
 Ctn’t be 
 forced to 
 give his 
 evidence. 
 
 Of the Proofs necessary to support 
 
 omitted in the present one for the purpose of using their 
 testimony in the particular case (1), unless their property 
 is rated in the name of another who has no interest 
 therein, for in that case whatever the person assessed paid 
 towards the rate, must be allowed him again by the pro¬ 
 posed witness as owner (2). The objection appears to 
 have been considered as further restricted to cases where 
 rated parishioners are produced by their own parish, for 
 they are admissible if called by the opposite side, as 
 being produced against their interest, and not being 
 immediate parties to the record. (3) 
 
 But he cannot be compelled to give evidence by the 
 adverse parish against his own, notwithstanding the sta¬ 
 tute 46 Geo. III. c. 37. which declares, “ that a witness 
 cannot by law refuse to answer a question relevant to the 
 matter in issue, the answering of which has no tendency 
 to accuse himself, or to expose him to penalty or forfeiture 
 of any nature whatsoever, by reason only, or on the sole 
 ground, that the answering of such questions may estab¬ 
 lish, or tend to establish, that he owes a debt or is other¬ 
 wise subject to a civil suit either at the instance of His 
 Majesty or of any other person or persons.” (4) Because 
 though the parties appealing before the court are the 
 churchwardens and overseers of the parish, which seems 
 at first to afford an answer to the objection, that a rated 
 inhabitant is not a party to the proceeding: yet in re¬ 
 ality the appeal is by the officers “ on behalf of the 
 « inhabitants of the parish, who are all of them paying 
 
 (1) Rex v. Kirdford, a East, 559. Chester, Burr. S. C. 588. and Cox v. 
 
 (2) Rex v. Killerby, 10 East, 293. Whalley, 20 Geo. III. cited in marg. 
 
 (3) Ashburton 1;.Woodland, 1 Term and in Rex v. Woburn, 10 East, 399. 
 
 Rep. 261. Semb. per Bayley, J- Rex But this point is overruled by the sub- 
 *u. Hardvvicke, 11 Ea^r, 590. sequent cases here stated. The act 
 
 (4) It was long ago decided in the 46 Geo. III. c. 37 * is declaratory; a 
 case of an appeal, that a rated parish- majority of the judges having been of 
 joner could be compelled to give evi- opinion, that a witness was compellable 
 dence which might tend to charge his to answer such questions by the corn- 
 parish. Rex v. St. Lawrence Win- mon law. Lord Melville s case. 
 
 « to 
 
44* 
 
 Settlement by Hiring , 
 
 to the rates, the parties grieved, and are all directly 
 “ and immediately interested in the event of the proceed- 
 t( ing, by which the maintenance of the pauper is to be 
 ie fixed on them, or removed from them, as well as the costs. 
 “ It is a long established rule of evidence, that a party 
 
 to the suit cannot be called upon against his will by 
 “ the opposite party to give evidence, and we think that 
 “ the late act of the 46th of the King* does not break in 
 “ upon this rule. That act takes away the right of ob- 
 <c jecting by reason only, or on the sole ground, that the 
 “ answering the question may establish, or tend to estab- 
 €i lish that the witness owes a debt, or is otherwise sub- 
 u ject to a civil suit. But that is not the ground of the 
 “ present objection; nor does it appear to us to have been 
 66 the intention of the legislature, by this act of parlia- 
 “ rnent, to alter the situation of parties to a suit or pro- 
 “ ceeding; more especially in a proceeding such as the 
 “ present, where the situation of the person proposed to 
 “ be examined did not bring him within the words of the 
 
 act, nor the inconvenience intended to be remedied by 
 “ it.” (1) 
 
 It followed as a consequence from this determination, 
 of his being quodamodo a party to the suit upon an ap¬ 
 peal, that the declarations of such a parishioner, made at 
 the time he was a rated inhabitant, may be given in evi¬ 
 dence in a question of settlement against his parish. (2) 
 And it is by no means necessary, in order to make such 
 declarations evidence, that he should first be called as 
 
 t 
 
 a witness and refuse to be examined. (3) 
 
 Also when in an appeal between the parishes of M.& T. 
 against an order of removal, evidence was given by the 
 
 (1) Rex-y. Woburn, 10 East, 395. of that kind; though there maybe 
 
 (2) Rex<y.Hardwicke,n Ea$t,5/8. occasions where the declarations of 
 But unless the opposite party first of- such a party would have great weight, 
 lered to call such inhabitant as a wit- Per Bayley, J. Ibid. But see post. (3) 
 ness, which was objected to, the ma- also Hart -y.Horn, 2 Camp. 492. 
 gistrates should not in ordinary cases (3) Rex v. Whitley, Lower, Trin. 
 give any weight to more declarations 53 Geo. III. j Mauls h Selw. MSS. 
 
 appel- 
 
 Declarations 
 
 evidence. 
 
 Interest 
 arising dur- 
 ing the trial. 
 
442 
 
 Pauper a 
 witness, 
 when master 
 not. 
 
 Credit of 
 witness how 
 attacked 
 and sup¬ 
 ported. 
 
 Of the Proofs necessary to support 
 
 appellants to shew the pauper’s settlement in R. a third 
 parish, a rated inhabitant of R. could not be called to dis¬ 
 prove that fact, and shew that no settlement was gained 
 there. For the object of his evidence is to fix the 
 pauper in T., which, when fixed, would conclude the 
 question of his settlement as to all other parishes at that 
 time, and he could not afterward be removed to R. in 
 respect of any previous settlement. He is therefore di¬ 
 rectly interested, because his evidence is to relieve his 
 own parish from the burthen of maintaining the pau¬ 
 per (i). But no person is bound to answer a question 
 
 which mav tend to criminate himself or subject him to a 
 * 
 
 penalty. (2) 
 
 It is evident from these rules that the pauper is in most 
 cases a good witness as to the circumstances respecting 
 his settlement (3); but his master in some may not. 
 
 A witness, although competent, may be unworthy ot 
 credit, either from his general character, or having given 
 a different account of the transaction previously, or from 
 many other circumstances. Witnesses may be called to 
 discredit him from general character, as if they will swear 
 from the knowledge they have of him, that they would 
 not believe him upon his oath. But they must not give 
 evidence as to a particular fact, for the man cannot come 
 prepared to justify it (4). A party may give general evi¬ 
 dence to support the character of his own witness, but 
 cannot produce it to discredit him, “ for that would be 
 « to enable him to destroy the witness if he spoke against 
 « him, and to make him a good witness if he spoke for 
 “ him, with the means in his hands of destroying him if 
 64 he spoke against him.” (5) 
 
 (1) Rex v. Terrington, ij East, (5) Hardwell v. Jarman, Taunton 
 47X, Spring assizes, 1789. cor. Buller, J. 
 
 (a) Rex'y.Portsea, Burr. S. C. 834* Hasting’s Cas. per Lord Chancellor, 
 
 (3) Per Ashurst, J. Rex.r. Eris- 11 June, 1789* In Dom. Proc. 12 
 
 well, 3 Term Rep. 720. Mod. 375, Adams v. Arnold, Bull. 
 
 (4) Bull. L. N. P. 29• L - N. 2 97 * „ 
 
 “ But 
 
 0 
 

 . Settlement by Hiring , fyc. 443 
 
 “ But if a witness proves facts in a cause which makes 
 <c against the party who called him, yet the party may 
 u call other witnesses to prove that those facts were other- 
 46 wise: for such facts are evidence in the cause, and the 
 u other witnesses are not called directly to discredit the 
 6i first witness, but the impeachment of his credit is ac- 
 66 cidental and consequential only.” (1) 
 
 Also a witness cannot be examined to any collateral 
 independent fact which is irrelevant to the matter in 
 issue, for the purpose of having him contradicted by 
 another witness, in order to discredit the whole of his 
 testimony. (2) 
 
 A further question has been made, how far the pau¬ 
 per’s examination respecting his place of settlement taken 
 before a magistrate upon oath, or a declaration of his to 
 the like effect, could be received in evidence, in the event 
 of his death, insanity, or being beyond the reach of judi¬ 
 cial process. 
 
 . It seems to have been the ancient practice of most 
 quarter sessions to admit these declarations as evidence; 
 and the court of king’s bench was formerly of opinion 
 that they were rightly received, considering it as one of 
 the excepted cases in which evidence upon hearsay 
 might be given. (3) 
 
 I’ * '* ' - ’ These 
 
 (t) Bull. L. N. P. 297. 
 
 (2) Spenceley v. De Willot. 7 East, 
 
 1 08. 
 
 (3) Re* v. Nuttley, Burr. S. C. 
 
 701. Rex -v. Greenwich, Burr. S. C. 
 
 MS* Rex v. St. Michael’s Bath, lb. 
 
 731. Rex v. Creech St. Michael’s, lb. 
 
 761. Rex «y. Holy Trinity in Ware- 
 ham, Cald. 141. 2 Bott, 362. PI. 390. 
 
 Rex ». St. Sepulchre’s, Cald. 547. 
 
 Rex v. Bury, Cald. 482. I. H. while 
 
 on his death bed, told his wife that 
 she and her children would belong to 
 and prove their settlement in the 
 parish of R. Buller J. “ No argu¬ 
 ment has been urged against receiving 
 the declaration of the husband on 
 his death-bed. From the awful situa¬ 
 tion in which the party speaks, such 
 testimony is uniformly received, in 
 criminal cases, and is consequently 
 admissible here.’* Rex v. Bury, Cald. 
 
 486. 
 
 Pauper's 
 examination 
 on evidence- 
 
 » 
 
 , 
 
 
 i 
 
 I 
 
444 
 
 ( 
 
 Nor his de¬ 
 clarations. 
 
 Examina¬ 
 tion under 
 ^lutiny 
 Act. 
 
 Of the Proofs necessary to support 
 
 These points were afterwards elaborately discussed 
 in the case of Rex v* Eriswell (i), when the judges were 
 divided in opinion. It has however been subsequently 
 determined, and must be now considered as settled law, 
 that neither the eoc parte examination of the pauper, taken 
 in writing on oath before two magistrates, whether for 
 the purpose of inquiring into his settlement (2), or of re¬ 
 moving him (3), are admissible in evidence upon a ques¬ 
 tion of settlement; and this, whether the pauper is 
 insane (4), or has absconded (5),-or is dead (6); and 
 hearsay evidence of the pauper’s declaration as to his 
 settlement are equally inadmissible under any circum¬ 
 stances. (7) 
 
 But examinations before two magistrates are made evi¬ 
 dence of settlement by the mutiny act (8), and the ori- 
 
 486. Such n declaration was ad¬ 
 mitted also in Appotens v. Dunswell. 
 
 2 Bott, 80. PI. 116. and see Wright 
 ex dern. Clymer v. Littler, 3 Burr. 
 1244. 1 Black. Rep. 345. S. C. Also 
 a case cited by Lord Ellenborough, 
 where Heath, J. admitted evidence, 
 that the attesting witness had, in his 
 dying moments, begged pardon of 
 heaven for having been concerned in 
 forging the bond v Aveson v. Lord Kin- 
 niard, 6 East, 195. But where a person 
 speaks in the abstract to his settle 
 ment, his declaration goes to a question 
 of law as well as a matter of fact. 
 
 (1) 3 Term Rep. 707. 
 
 (2) Rex v. Eriswell, ante, (1). 
 
 (3) Rex v. Nuneham Courtney, 
 j E-st, 373, and the cases cited in the 
 following notes. 
 
 (4) Rex v. Eriswell, ante, (1) 
 
 (5) Rex v. Nuneham Courtney, 
 ante, (3). , 
 
 (6) Rex v. Ferry Fry Stone, 2 East, 
 54. Rex v. Abergwilly, ib. 73. 
 
 (7) See the cases cited, ante, n. (2), 
 (3), (5), (6). Rex v. Chadderton, 2 
 East, 27. wherein the declarations of 
 a mother to her son, that she had been 
 relieved by the parish of C. were held 
 not to be admissible in evidence after 
 the mother^ death, Rex v. Erith, 
 ante, 293. et seq. 
 
 (8) Sect. 33. enables two or more 
 justices for the county,where any non¬ 
 commissioned officer or soldier shall 
 be quartered, in case such officer or 
 soldier has either wife or child or 
 children, to cause such officer or sol¬ 
 dier to be summoned before them in 
 the place where they are quartered, 
 in order to make oath of the place of 
 their last legal settlement; and such 
 persons are directed to obey such sum¬ 
 mons, and to take oath accordingly. 
 And such justices are thereby requested 
 
445 
 
 Settlement by Hiring, fyc. 
 
 ginal examination has been held admissible in evidence as 
 well as the attested copy (i); but no other attested copy 
 is legal evidence while the original is in existence, except 
 that given to the soldier (2), and when produced, they 
 must be proved and authenticated in the same manner as 
 other written instruments. (3) 
 
 Evidence of the master’s declarations after his death, 
 are equally inadmissible as to the pauper’s having been 
 hired as those of the pauper. (4) 
 
 to give an attested copy of such aiE- 
 davit to the person making the same, 
 to be by him delivered to his com¬ 
 manding officer, in order to be pro¬ 
 duced when required, which attested 
 copy shall be at any time admitted in 
 evidence as to such last legal settle¬ 
 ment before any of his majesty’s jus¬ 
 tices of the peace, or at any general 
 quarter sessions of the peace ; pro¬ 
 vided always that in case any such 
 officer or soldier shall be again sum¬ 
 moned to make oath as aforesaid, 
 then on such attested copy of the oath 
 by him formally taken, being pro¬ 
 duced by him, or by any other person 
 
 on his behalf, such officer or soldier 
 shall not be obliged to take any other 
 or further oath with regard to his le-> 
 gal settlement, but shall have a copy 
 of such attested copy of examination, 
 if requited. 
 
 (j) Rex v. Warley, 6 Term Rep. 
 534. Rex v. Billon, I East, 13. But 
 see Burdon Richets,2 Camp. N. P. 
 121 . 
 
 (2) Rex v. Clayton Le Moors, 
 5 Term Rep. 704. 
 
 (3) Rex v. Bilton, ante. n. (1). 
 
 (4) See Rex v. I.yth, 5 Term 
 Rep. 247. 
 
 \ 
 
 
I 
 
 22 & T4 C. 
 
 II- C. 12. 
 
 2 W. Sc M. 
 C- II. 
 
 Apprentice 
 nPed not be 
 unmarried, 
 See. 
 
 Cannot gain 
 settlement 
 but as ap¬ 
 prentice. 
 
 I 
 
 { 446 ) 
 
 CHAPTER XXI. 
 
 A i 
 
 9 * ' V ' . 
 
 Of Settlement by Apprenticeship . 
 
 »>- • <* *. » * >\-it \ ' iaA f • riHf tj. y„,,. 
 
 ; SECT. I. 
 
 Division of the Subject and general Rules respecting it. 
 
 ■ 
 
 OTHING more was required to settle an apprentice, 
 by 13 & 14 Car. II. c. 12. than a residence of forty 
 days(i). The 3 Will. & Mar. c. 11. exempts him from 
 the necessity created by different statutes, that he should 
 give notice of his inhabitancy. It enacts, that “ if any 
 person shall be bound an apprentice by indenture, and 
 inhabit in any town or parish, such binding and inhabi- 
 « tation shall be adjudged a good settlement, though no 
 <« such notice in writing be delivered and published.” 
 
 & 
 
 u 
 
 u 
 
 An apprentice is not encumbered like an hired servant, 
 with the condition, that he shall be unmarried (2), and 
 without emancipated children when he makes the con¬ 
 tract. 
 
 It is sufficient if he is bound as an apprentice, and in¬ 
 habits the town or parish in that capacity. 
 
 But as he is enabled to acquire a settlement by these 
 means, he is fettered from gaining one in a capacity which 
 is inconsistent with the relation he has covenanted to 
 stand in towards his master. 
 
 (1) Ante, Chap. xvi. p. 252. et seq. 
 
 (2) Titchfield v. Milford, Burr. S. C.511. 
 
 This 
 
Of Settlement by Apprenticeship. 447. 
 
 i 
 
 This is most clearly stated by Lord Kenyon, in what 
 he considers as “ axioms in this branch of settlement 
 <£ law\” His words are: ‘ 6 It is clear that, in general, 
 
 ££ an apprentice is not capable of contracting the relation 
 ££ of servant (or apprentice) to any other master, until 
 ££ the end of the term for which he was bound. But it 
 ££ is equally clear, that if the master and apprentice put 
 ££ an end to the apprenticeship by mutual consent, it is 
 “ the same as if the indentures had never been executed, 
 
 “ and the latter may gain a settlement by hiring and ser- 
 C£ vice (or under a new indenture of apprenticeship) (i) 
 
 ££ with any other master, before the expiration of the 
 66 time which he was bound to serve as an apprentice. 
 fi£ Then there is a third case, that is where the apprentice 
 ££ leaves his master and enters into the service of another, 
 u if the indenture still subsist, he is not sui juris, but is 
 66 incapable of gaining a settlement by serving another 
 <£ master, unless he serve with the consent of his former 
 “ master, and in such case he gains a settlement, not as 
 “-an hired servant, but as an apprentice.” (2) 
 
 These rules depend upon the incapacity to make a new Rules apply 
 contract while the indentures continue, and respect an apprentke- 
 apprentice regularly and effectively bound. \ ships. 
 
 But although the parties intend a contract of appren- Rules as to 
 ticeship, it will not enure as such if defective in substance defectlve 
 or in form. Another rule is applicable therefore to per¬ 
 sons in this situation, viz. That <£ where a contract 
 ££ clearly appears to be intended as a contract of appren- 
 “ ticeship, and not as one of hiring and service as a ser- 
 “ vant, it shall not, if defective as a contract of appren- 
 <£ ticeship, be converted into a contract of hiring and 
 
 * ‘ ' * , t. t •j % > 
 
 (1) Rex v Weddington, Burr. (2) Per Lord Kenyon,C.J. Rex ■». 
 S. C. 766. Chipping Warden, 8 Term Rep. 108. 
 
 . q ££ service, 
 
 1 
 
 / 
 
448 
 
 Division of 
 subject. 
 
 Of Settlement by Apprenticeship. 
 
 « service, so as to gain the party a settlement as a ser- 
 44 vant.” (i) 
 
 For all the statutes acknowledge a distinction between 
 the condition of an apprentice and that of an 1 “J' ed s< f'' 
 vant, and the 3 W. & M. c. n. regulates them by 
 very different provisions. It is but reasonab e, t ei e ore, 
 that “ if the parties cannot avail themselves of the con- 
 
 condition to .hioh fto, t...n*d » 
 
 « S tend, they shall not be put into another, in which they 
 « did not mean to place themselves.” (2) 
 
 The foregoing rules neither admit of modification nor 
 
 <»»* » f «■“ rS 
 
 reference to them, be di,tritat«d under the foUo.mg 
 heads: 
 
 ist The binding necessary to confer a settlement by 
 
 apprenticeship. Under this head will be considered the 
 distinction between defective contracts of apprenticeship 
 and effective contracts of hiring and service. 
 
 2 d Bv what means indentures of apprenticeship are 
 put an end to, so as to restore to the apprentice his 
 
 capacity of entering into a fresh contract, under which 
 a settlement can be acquired. 
 
 Further, as the party must inhabit the town or parish 
 as an apprentice, what shall be considered as an abiding 
 in that capacity; or in other words - 
 
 red Of the service necessary to confer the settlement, 
 
 4th, Of the residence by, and place in which a settle- 
 ment is gained. 
 
 , t ei t Retv fa) Verba Lord Kenyon, C.J. lb. 
 (1) Verha Le Blanc, J. Kex j ■ 
 
 Lamdon, 8 Term Rep. 379. Ante* 
 
 313. et*eq. 
 
 I 
 
 SECT. 
 
Of Settlement by Apprenticeship . 
 
 449 - 
 
 SECT. II. 
 
 Of the binding necessary to gain a Settlement by Appren¬ 
 ticeship. 
 
 Apprentices are bound, ist, By voluntary consent, How bound, 
 without the intervention of parish officers; and this is 
 usually under 5 Eliz. chap. 4. 
 
 2d, By virtue of the power given to parish officers by 
 
 43 Eliz. chap. 3. in which case they are called parish 
 apprentices. 
 
 Neither statute was enacted with a view to settlements. Design of 
 The first was designed to regulate trade, and the latter, thest3U,t3S - 
 to instruct and maintain children actually settled and 
 recognized as parochial poor. But a settlement may be Settlement 
 gained, not only by a binding under either, but likewise 
 by a voluntary binding, although not within the 5 Eliz. e ' ltlier - 
 chap. *4., as also by one under 43 Eliz. c. 2., where the 
 directions of that act are not literally fulfilled. The 
 reason is, that some deviations from these statutes render 
 the instrument void, while others make it only voidable. 
 
 If void, no settlement can be acquired under it; Avoid¬ 
 able, it is otherwise. Because, in the first case, the deed 
 is bad as to the whole world, and for all purposes what¬ 
 ever; but, in the latter, it is only to be avoided at the 
 election of the parties, and no other person can take 
 advantage of the defect. The validity of in lentures, so 
 far as respect questions of settlement, depends upon the 
 foregoing rule. 
 
 The 3 Will. & Mary, c. 11. s. 5. requires, in con- Binding, 
 formity to 5 Eliz. c. 4. that the binding shall be by in- ^f e y indcn ' 
 
 VOL. I. g g dentures 
 
45 ° 
 
 31 Geo. II. 
 
 c. II. 
 
 Binding. 
 
 2 . By deed. 
 
 Agreement 
 in parish 
 hooks. 
 
 Of the Binding necessary to gain 
 
 dentures (i), i. e. by deed indented; a deed “being a 
 « writing sealed and delivered by the parties (2).” Under 
 this act it was necessary that the instrument should be 
 actually indented (3). But 31 Geo. II. c. 11. enacts, that 
 no person who shall be bound an apprentice, by any deed, 
 writing, or contrract, not indented, being first legally 
 stamped, shall be liable to be removed from the place 
 where he was so bound, and resident forty days, by vir¬ 
 tue of any order of removal, or order of sessions, by rea¬ 
 son of such deed, writing, or contract not being indented 
 
 only. 
 
 But this act does no more than cure the want of 
 indenting. The binding must still be by deed. It 
 must therefore be in writing, and have the other for¬ 
 malities of a deed (4). The pauper H. E. was placed 
 out by the parish officers to a parishioner, under the 
 following agreement, written in a leaf of the pa™h 
 book: “ August 7th, 1774. At a general meeting hel 
 « at the parish of B. this day, it is agreed, that R. F. 
 “ shall take H. E. and maintain her after the manner 
 “ of an apprentice, from this day until Michaelmas 
 « 1783 ; R. F. to have 20I. with her, and at the ex- 
 « piration of her said time, to double clothe her. wit- 
 « ness my hand, R. F.” She served a year and a half, 
 but was held not to have gained a settlement as an 
 apprentice, for the binding was not by deed, and having 
 served as an apprentice, it could not be construed into 
 service as an hired servant. (5) 
 
 (1) This latter act seems only to 
 refer to binding persons under age, 
 which, if done by deed, poll is bad. 
 Smith v. Birch, i Sess. Ca. 222 . 
 % Bott, 3. PI. 7 ° 6 - 
 (a) a Black. Com..295. 
 
 < 3 ) •V. Mellinghara, 2 Bott, 
 
 7©. Pi. 400. I Sess. Ca. 417. 
 
 « Rex v. Mawman, Burr. S. C. 
 290. Rex v. Stratton, Burr. S. C~ 
 27a. Rex v. Whitechurch Cannoni- 
 corum, Burr. S. C. £ 4 °* R ex * «/• 
 Margram, 5 Term. Rep. 153. 
 
 (j) Rex v. Ditchingham, 4 Term 
 Rep. 769. 
 
 Both 
 
a Settlement by Apprenticeship. 4^1 
 
 Both master and apprentice should be parties to the 3- Who 
 deed (1). An indenture was entered into and executed iheir con" 1 2 3 
 by the master and the father of Id. then fourteen years dltlon * 
 old, to teach him the art and mystery of weaving, for 
 five years. H. was no party to the indenture, and his 
 father entered into no covenant that he should serve, &c. 
 
 The court held this not to be a binding by indenture, and 
 that service under it did not give a settlement. (2) 
 
 So also when a girl 23 years old was put apprentice 
 by her father-in-law with her own consent, and was 
 present at the making of the agreement, but the in¬ 
 denture was only executed by the master and father-in- 
 law, and was never tendered to her for the purpose, 
 though she lived nearly 12 months under it. The court 
 asked whether it was possible to maintain this to be a 
 competent binding of an adult, who was no party to the 
 indenture. (3) 
 
 -» 4 - . • 
 
 But the master’s condition is immaterial, if the binding 
 is without fraud. 
 
 Thus a female may be bound apprentice by the parish Binding to 
 to a day-labourer, to learn the art and mystery of a house- mL°or\T&<:. 
 wife (4). So it will be good, although the apprentice is 
 bound to a master who has no right to take one under the 
 statute (5). And the age of the master or servant is im¬ 
 material. A father, whose child was eight years old, 
 agreed with M. H. to bind him to her son aged fourteen, 
 and residing in her house as part of her family, without 
 habitation or business of his own; the pauper was bound 
 
 (1) See case of Chesterfield, 2 Salk. (4) Rex v. St. Margaret’s Lincoln, 
 479.; and Rex v. Ditchingham, ante, J Bott, 613. 
 
 45°. n. (5). (5) Anon, a Bott, 370. PI. 397 
 
 (2) Rex -v. Cromford, 8 East, 25. and post. 452. n. (1). 
 
 (3) Rex v. Ripon, 9 East, 295. 
 
 G G 2 
 
 accordingly 
 
45 2 
 
 4. Execu¬ 
 tion. 
 
 Of the Binding necessary to gain 
 
 accordingly with his own free will. He gamed a s eider 
 ment by serving under the indenture, for it was not ab¬ 
 solutely void (i). So in the case of a parish apprentice, 
 it was no objection that the child was only eight years 
 old (2) ; or put out by the parish officers to a master 
 residing in another parish (3) or county (4), who conse¬ 
 quently could not be compelled to receive him. And the 
 binding seems equally good, although the apprentice is a 
 minor, and his parents’ consent does not appear; because 
 an infant may make an indenture for his own benefit.(5) 
 
 But although the master and apprentice mustbe parties 
 to the deed, yet the settlement is not prevented by the 
 master’s neglect to execute, provided the apprentice is 
 bound (6); and tlie faw is the same whether it be a parish 
 or a voluntary apprentice. 
 
 r + - : - • 
 
 The original indenture was properly executed by all 
 the parish officers, and allowed by two justices. The 
 counterpart was also allowed by the same justices; the 
 master executed neither, but accepted the indenture and 
 the pauper; the latter gained a settlement by service 
 under this apprenticeship, although the mailer had not 
 signed the counterpart, pursuant to 8 & 9 W. III. c. 30. 
 s. 5. For the binding was authorized by 43 Eliz. c. 2. 
 s. 5. long before the act requiring a counterpart, fhat 
 act was only made to remove the doubt whether persons, 
 to whom poor children were to be bound, were compella¬ 
 ble to receive them, and subjects the master to a penalty 
 upon his refusal, but in no other respect confiims the 
 
 (i) Rex v. St. Petrox, in Dart¬ 
 mouth, 4Term Rep. 169. 
 
 (a) Rex v. Saltern, Cald. 444 * 
 
 (3) Rex v. St. Margaret’s Lincoln, 
 ante, 451* ( 3 )- 
 
 (4) Rex v. St. Nicholas iu Notting¬ 
 
 ham, post. 453. (3). Rex v. Saltern, 
 1 Const. 613. PI. 886. 
 
 (5) Newberry v. St. Mary’s, Fol. 
 
 154 - 
 
 (6) Rex v. St. Peter’s on the Hill, 
 a Bott. 377. PI. 403. I Bott. 544* 
 PI. 745 . 
 
 power 
 
a Settlement by Apprenticeship. 
 
 p$i*er of binding, which was already established (i). 
 The law is the same if the indenture is duly signed by 
 the master and reputed parent, but not by the appren¬ 
 tice (2), or only by the master and parish officers when 
 he is put out by the parish (3) ; for his consent shall be 
 implied if he lives under the binding (4), even where he 
 was originally carried to the master by his parent against 
 his consent. (5) 
 
 So likewise, if an infant is not bound for that time 5- Tirneof 
 which the statutes direct him to be, it does not affect the 
 settlement ; for it only renders the indentures voidable at 
 the party's, election. 
 
 The 5 Eiiz* c. 4. s. 26. directs, that the binding, in i.ess than 
 such cases as are within the act, shall be for seven years; qj*ed% 
 and sect. 4 1. declares, that all indentures, &c. for hiring, statute, 
 letting, or keeping an apprentice, otherwise than is by 
 that statute ordained, “ shall be clearly void in the law 
 “to all intents and purposes." Yet it is held, that a 
 binding for a less time, as four years, confers a settle¬ 
 ment. For this section does not make the indenture void, 
 but only voidable, if the parties themselves think fit to 
 
 take advantage of it (6). So 43 Eliz. c. 2. s. 5. enacts, --- 
 
 that male apprentices shall be bound out by the parish till 
 the age ofjwenty-four (7). Yet a binding till twenty- 
 three (8) or t wenty^onFfconfers a settlement ; for the sta¬ 
 tute is 'only directory, and not compulsory in this re- 
 
 (1) Rex v. Fleet, Cald. 31. 
 
 (l) Rex Badby, 1 Bott, 547. 
 PI. 746. But the point was not made. 
 
 ( 3 ) ^ ex St. Nicholas in Not¬ 
 tingham, 2 Term Rep. 726. Rex v. 
 Woolstanton, 1 Const. 606. PI. 8; 6. 
 
 (4) Ante, n. (3). 
 
 (5) Rex v. Woolstanton, 1 Const. 
 606. PI. 876. 
 
 (6) ft. Nicholas v. St. Peter’s, 
 Burr. S.C. 91. Rex •v. Gainsborough, 
 I Bott, 546. PI. 745. post. Rex v. 
 Evered, Cald. 26. S. C. 16 East, 27. 
 Grey y. Cookson, Ibid. 13. 
 
 (7) But this is altered to the age of 
 21, by 18 Geo. III. c.47. 
 
 ( 1 ?) Rex v. Chalbury, i Bott, 610. 
 PI. 848. 
 
 G G 3 
 
 spect. 
 
Of the Binding necessary to gain 
 
 spect (i). The same act directs, that women children put 
 out by the parish shall be bound till they 44 shall come to 
 44 the age of one and twenty years, or the time ol their 
 44 marriage.” But a girl bound out by the parish to serve 
 44 for a longer period than the statute authorizes, viz. 
 
 44 until she should have accomplished her full age of 
 44 twenty-one years,” omitting the alternative of marriage, 
 thereby acquired a settlement. For the indenture is not 
 void, nor voidable by any but the parties themselves. (2) 
 
 It is said further, that an indenture is good under that 
 act, although it covenants for no certain time. (3) 
 
 The remaining statutory provisions which respect ap¬ 
 prentices, do not, at least in general, touch or affect the 
 question of settlement. Thus 7 Jac. I. c. 3* s. 2. re¬ 
 quires, that all corporations of corporate places ; and in 
 towns and parishes not incorporate, that the parson or 
 vicar thereof, together with the constable or constables, 
 the churchwarden or churchwardens, collectors and over¬ 
 seers for the poor, shall have the nomination and placing 
 of apprentices, where money has been given for binding 
 out a number of the poorest sort of children unto need¬ 
 ful trades and occupations. A binding out of a charity 
 fund of this sort was held sufficient, although made by 
 the churchwardens and overseers, without the parson. (5) 
 
 So one bound apprentice to a mariner was held settled 
 by service under his indenture, although not inrolled in 
 the town where the apprentice was then inhabiting, nor 
 m the next incorporate town to his habitation, pursuant 
 
 {j^' Rex */. Woolstanton, i Eott, (3) Rex v. Woolstanton, ante, 453. 
 to 10. PI. 849. n. (5). 
 
 (2) Rex v. St. Petrox, Burr. S. C. (4) Rex v. Chalbury, 1 Bott, 643. 
 248.. PI. 898. 
 
4SS 
 
 a Settlement by Apprenticeship . 
 
 to c Eliz. c. c. s. 12., nor with the collector of the cus- ^ Eilz - c * 5 * 
 toms, pursuant to 2 & 3 Anne, c. 6. ( 1 ) a & 3 Anne, 
 
 c. 6. 
 
 The indenture of apprentices who are put out by the 7* Parish 
 
 1 r . . r indentures, 
 
 parish, varies but little in substantial particulars from 
 
 those under which minors are bound by their own free 
 
 will, with their parents’ consent. (2) 
 
 The chief differences are, rst, that the parish officers Officers 
 must be parties to the parish indenture. The 43 Eliz. parues * 
 c. 2. sect. 6. required that poor children should be bound 
 out apprentices by the said churchwardens and overseers 
 or the greater part of them; and as the act required at 
 least two overseers in every parish, besides the churchwar¬ 
 dens, a binding by two persons styling themselves church¬ 
 wardens and overseers, who had been appointed over¬ 
 seers, while one of them was churchwarden, was void, 
 and no settlement could be gained under it; for the 
 statute requiring that the aggregate body shall consist 
 of more than two persons, although a majority might 
 act, there was not a competent compulsory binding by 
 competent persons as required by the statute. (3) 
 
 But the ill consequences which, it was apprehended, 5^0. nr. 
 might result from this construction of the statute, have c ’ So ’ 
 been remedied by the 51 Geo. III. c. 80. passed imme¬ 
 diately after the foregoing decision, which, after re¬ 
 citing that in divers small parishes two persons only have 
 been appointed to act in the capacity of church-wardens as 
 well as overseers, and that divers indentures for binding 
 parish apprentices have been executed and signed by 
 
 (i) Rex Gainsborough, Burr. c. 57. 42 Geo. III. c. 46. for which 
 S. C. 586. see the Appendix. 
 
 (a) The statutes which regulate (3) Rex v. All Saints, Derby, 
 parish apprentices are, 43 Eliz. c. 2. 13 East, 143. See also Rex •v. Clif- 
 
 8&9W. 111 . c. 30. 18 Geo. III. ton, 8 East, 332. Rex v Hinchley, 
 
 e. 47. »o Geo. III. c. 36. 3a Geo. III. 12 East, 361. 
 
 G G 4 BUch 
 
456 
 
 Assent of 
 justices. 
 
 Of the Binding necessary to gain 
 
 such two persons, purporting to be the churchwarden? 
 and overseers of such two parishes, but by reason that ■ 
 the said indentures have not been signed by distinct 
 persons or churchwardens and other distinct peisons as 
 overseers, the said indentures have been or may be deem¬ 
 ed to be void, enacts, “That all indentures for the 
 binding of parish apprentices, which have been hereto¬ 
 fore executed and signed by two persons only, acting or 
 purporting to act in the capacity of churchwardens as 
 well as overseers of the poor, and also all such inden¬ 
 tures as shall have been so signed, shall be considered as 
 good, valid and effectual as if the same had been exe¬ 
 cuted and signed by distinct persons as churchwardens, 
 and distinct persons as overseers of the poor.” 
 
 2d. The 43 Eliz. further requires that the binding 
 shall be by the assent of two justices, which must be 
 given in each other’s presence, or the binding is void. 
 “ For in such a most serious subject as this, the legisla¬ 
 te ture intended, that the magistrate should have a check 
 66 and controul over the parish officers, and they are 
 « called upon to examine, with the most minute and 
 « anxious attention, the situation ol the master to 
 ec w hom the apprentices, are to be bound, and to exer¬ 
 ts cise their judgment solemnly and soberly, before they 
 a allow or disallow the act of the parish officers; for 
 *i which purpose it is necessary that they should corn¬ 
 er f er together.” (i) But it is sufficient although one ma¬ 
 gistrate signs the indenture when alone, provided he is 
 present afterwards when the other signs it, for the assent 
 of the first is also given at that time (2). As far as the 
 matter can be traced, the assent of the justices has been 
 
 always signified by signing (3): and w T hen the mastei 
 
 has 
 
 (i^i Rex v. Hamsiall Redware, (3) Per Buller, J. Rex v. Saltern, 
 3 Term Rep. 380. Cald 444 - But \ViUes,J. was of 
 
 (2) Rex Winwick, 8 Term opinion, that as the statute prescnbes 
 ^ neither the time nor mode of absent, 
 
 * ~ it 
 
457 
 
 a Settlement by Apprenticeship . 
 
 has executed the counterpart, lie shall not be admitted 
 afterwards to give evidence, that at the time of the 
 execution it was signed only by one justice, (i) 
 
 But the assent of the justices is only necessary where 
 the minor is put out by the parish. It is not so when a 
 poor person under age binds himself voluntarily as an 
 apprentice; for 43 Eliz. c. 2. only extends to case* where 
 a poor child is put out in a compulsory way. (2) 
 
 Indentures of apprenticeship must be properly stamp¬ 
 ed (3). These stamps were of two kinds previous to 
 44 Geo. III. cap. 98. 1. The duties laid upon the deed 
 
 itself by virtue of the general stamp acts: which were, 
 “ where the apprentice was bound out by the parish, 
 sixpence : On all others where a sum or value, not ex¬ 
 ceeding ten pounds, was given or contracted for, with 
 or in relation to the apprentice, twelve shillings: And 
 where the apprentice fee exceeds that sum or value, an 
 additional twenty shillings.” And the indenture not 
 only required a stamp, but it must be that particular one 
 which is appropriate to deeds of this species (4), or else 
 one which, though of a different nature, is at least 
 equal in amount, and the component parts of which were 
 
 it may be well enough if given at any 
 time before the sessions; and per 
 Ashhurst, J. I don’t know that we are 
 bound to say what the statute has not 
 said, that it is necessary for the two 
 justices to assent before the binding. 
 Qusre whether, if the justices had 
 expressly assented when met together, 
 the binding would not be good,although 
 they signed the indentures when apart 
 from each other ? See Batty v. Griesly, 
 Taster, 47 Geo. III. ante, 50. and 
 Rex v. Winwick, ante, 456. (2). 
 
 (1) Rex i>. Saltern, ante, 456. (3). 
 (a) Rex v. St. Mary’s, Reading,' 
 I Bott, 6c9. PI. 845. 
 
 (3) Salford v. Storeford, 1 Bott, 
 370. PJ. 329. Rex v. Holbeck in 
 Leeds, Burr. S. C. 108. Rex v. 
 Llanvair Dyffryn Clwyd, Burr. S. C. 
 
 23^* 
 
 (4) Robinson Dry borough, 6 
 
 Term Rep. 317. Farr v. Price, 
 1 East, 54. Chamberlain v. Porter, 
 New Rep. 30. 
 
 appli- 
 
 Voluntary 
 binding, of 
 pauper. 
 
 8. Stamps 
 on deed. 
 

 00 
 
 Of the Binding necessary to gam 
 
 
 applicable in corresponding proportions to the same 
 
 funds as those to which the proper stamp was appro- 
 
 
 priated by the legislature. (1) 
 
 Want of 
 stamp how 
 cured. 
 
 Although the want of this stamp is a fatal objection 
 while it continues, and renders the indentures void and 
 unavailable in evidence (2), yet the defect can be cured 
 by getting the instrument properly stamped. This may 
 be done by paying the duty, together with a penalty for 
 neglecting to have it done within the time limited by the 
 legislature. 
 
 9. Stamp 
 for appren¬ 
 tice fee. 
 
 8 Anne, 
 
 The other duty upon these indentures was imposed by 
 8 Anne, c. 9. s. 32., which enacts, that “ the sum of six- 
 e£ pence for every twenty shillings of every sum of fifty 
 
 c. 9. s.32. a p 0un( is or under; and one shilling for every twenty 
 
 35. 
 
 I ' 
 
 I 
 
 <c shillings of every sum amounting to more than fifty 
 u pounds, which shall be given, paid, contracted or 
 tc agreed for, with, or in relation to every clerk, ap- 
 66 prentice, or servant, which shall in the kingdom of 
 €6 Great Britain be put or placed to, or with any mas- 
 c{ ter or mistress, to learn any profession, trade, or 
 <e employment, and proportionally for greater or lesser 
 <s sums, shall be paid by the said master or mistress 
 cc respectively.” 
 
 By sect. 35. the full sum received or contracted for is 
 to be inserted in words at length, in the indenture or 
 writing containing the covenants, &c. relating to the 
 service, or the master or mistress shall forfeit double the 
 sum, and the instrument shall bear date upon the day of 
 the execution. 
 
 I ! 
 
 H ( 
 
 (1) Taylor u. Hague, 2 East, 414. (2) Rex v. Llanvair Dyffryn Clwyd, 
 
 Sec 37 Geo. 111 . c. 46. 41 Geo.III. Burr. S. C. 236. Rex v. Highnam, 
 c. 2a. Cald.491. 
 
 By 
 
 V 
 
459 
 
 a Settlement by Apprenticeship. 
 
 By sect. 3 6. two stamps are to be provided, one for Sect. 36. 
 the duty of sixpence, and the other for that of the shil¬ 
 ling, with one of which the indentures or other writings 
 shall be stamped, according to the amount of the sum 
 given or agreed for. 
 
 Indentures signed in London, Westminster, or within Sect. 36. 
 the bills ot mortality, shall be stamped within one month 
 after date. 
 
 . * ■ . h i 
 
 Every indenture entered into elsewhere in Great Bri- Sect. 3 7. 
 tain, shall be either stamped within two months, or 
 brought within that time to some collector or officer, 
 appointed for the management of these duties, who shall 
 endorse a receipt for the duty paid, in words at length, 
 bearing date on the day of the payment. 
 
 By sect. 38. where the endorsement is made within Sect. 38. 
 fifty miles from the bills of mortality, the indenture shall 
 be stamped within three, and if at a greater distance, 
 within six months after the date, or making thereof. 
 
 By sect. 39. all such indentures or writings, as afore- Sect. 39. 
 said, wherein shall not be truly inserted and written the 
 full sum and sums of money received, with, or in rela¬ 
 tion to such clerk, apprentice, or servant as aforesaid, 
 or whereupon the duties payable by this act shall not be 
 duly paid, or lawfully tendered, or which shall not be 
 stamped, or lawfully tendered to be stamped, according 
 to the tenor and true meaning of this act, within the re¬ 
 spective times herein for that purpose severally and re¬ 
 spectively limited, shall be void , and not voidable in any 
 court or place , or to any purpose whatsoever , and the 
 clerk or servant whom the same shall concern or relate 
 to, shall in such case be utterly incapable of being free 
 of any city, town, corporation, or company, and of fol¬ 
 lowing or exercising the intended profession, trade, or 
 
 employ- 
 
460 
 
 Of the Binding necessary to gain 
 
 employment, any charter, law, or custom to the con¬ 
 trary notwithstanding. 
 
 Sect. 40. Sect. 40. Provided always, that nothing in this act 
 contained shall be construed to extend to charge any 
 master or mistress with the payment of any of the said 
 duties, in respect of any money by him or her received 
 with any apprentice or servant, who shall be put or 
 placed out at the common or public charge of any parish 
 or township, or by or out of any public charity, or to 
 require the stamping with any such new stamp, as afore¬ 
 said, of any indenture, articles, covenant, or contract 
 relating to such apprentice or servant as last mentioned; 
 any thing herein contained to the contrary notwith¬ 
 standing. 
 
 Sect. 45. Sect. 45. Where any thing or things, not being law¬ 
 ful money of Great Britain, shall directly or indirectly 
 be given, assigned, conveyed, delivered, contracted for, 
 or secured, to or for the use or benefit of any master or 
 mistress, with or in respect of any such clerk, apprentice, 
 or servant, for whom a duty is chargeable by this act, 
 the duties hereby granted and last mentioned shall be 
 answered and paid for the full value or values of such 
 thing or things, and the same duties for the said values 
 shall be secured and answered in the same manner and 
 form, and under the like pains, penalties, forfeitures, 
 and incapacities, as are before in this act provided for 
 securing the said rates upon monies given or paid, or 
 agreed to be given or paid, with such clerks, appren¬ 
 tices, or servants as aforesaid. (1) 
 
 (1) The foregoing clauses respect 
 the duty as it affects the validity of the 
 indentures upon which the settlement 
 depends. There are other sections as 
 well as subsequent statutes which en¬ 
 force penalties on the master for 
 neglecting to pay the duty, and give 
 the apprentice time to get his inden- 
 
 12 
 
 tures stamped, under particular cir¬ 
 cumstances, and upon certain con¬ 
 ditions. But it seems unnecessary to 
 state them here, as thev do not affect 
 the question of settlement. Such are 
 18 Geo. II. c. 22. ss. 24, 25> 26. 
 20 Geo. II. c. 45. ss. 5, 6, 7> 8. 
 5 Geo. III. c. 46* ss.iBj ij' 4^* 
 
 This 
 
a Settlement by Apprenticeship.. 
 
 This duty must be paid, where a fee of twenty shil¬ 
 lings or more is given to the master; and if a proper 
 stamp is not affixed, in pursuance of the statute, the in¬ 
 denture cannot be given in evidence, but is void, and no 
 settlement is gained by serving under it. (i) 
 
 Some indentures however do not require this stamp, Exceptions 
 as not being within the scope of the act; and others are g^ ne c 
 expressly exempted. Thus it seems hardly to have re^ i. Nocon- 
 quired a case to determine, that indentures where no 1 e 3 ° n ‘ 
 consideration money is given with the apprentice, are not 
 within the statute. (2) 
 
 So likewise, sums under twenty shillings are exempt a. Under 
 from this duty; for the legislature, by fixing it at so iCS ” 
 much for every twenty shillings, limit that as the smallest 
 sum upon which the tax is payable (3). And the inden- Duty paid 
 tures will not be avoided if the duty is paid on a greater tha™m«ter 
 sum than was actually received by the master, although receives '* 
 sect. 39. requires, that the full sum received shall be truly 
 inserted therein; for this only means that no part of 
 what is paid shall be concealed. Thus, where the sum 
 agreed to be paid was five guineas, which was inserted in 
 the indenture, and the duty was paid on five guineas, 
 although in fact only four guineas were paid; the appren¬ 
 tice gained a settlement under the indentures, because 
 the duty was paid on the sum contracted for; and even 
 if four guineas were all the master was to have, still the 
 words of the act have been complied with, for the full 
 sum paid, and more, has been inserted, and the duty 
 paid upon it, and the proper stamp appropriated to this 
 description of instruments has been used. (4) 
 
 (3) Rex v. Yarmouth, Burr. S. C. 
 
 379. Baxter v. Faulam, i Wils. 129. 
 where the sum given was 6d; 
 
 (4) Rex -v. Keynshara, Tfrin. 
 
 44 Geo. Ill, 5 East,309. 
 
 (1) Cuerden v. Lelarid, 1 Butt, 
 541. PI. 742. Rex -v. Ditchingham, 
 ante, 450. n. (5). 
 
 (.a) Rex v. St. Peter's Chester, 
 1 Bott, S 44 . PI 745 - 
 
 It 
 
462 
 
 3. Things 
 • or appren¬ 
 tice’s use. 
 
 Money to 
 clothe ap¬ 
 prentice. 
 
 Meat,drink, 
 See. found by 
 the father: 
 the master 
 allowing an 
 equivalent. 
 
 Of the Binding necessary to gain 
 
 It has been likewise held, that this act applies only to 
 money, or things of value received by the master by way 
 of premium for his own benefit; but that such things are 
 exempt from duty, if given solely for the apprentice’s 
 use. 
 
 A master refused to take an apprentice because he 
 wanted clothes, upon which the grandfather agreed to 
 pay the master thirty shillings to clothe the boy, which 
 he did, and no mention was made of this sum in the in¬ 
 denture, nor any duty paid; yet service under this in¬ 
 denture gave a settlement; for the master was to be con¬ 
 sidered as an agent for the grandfather in clothing the 
 boy. The clothing was before binding, and it is only 
 putting a boy apprentice ready clothed. The statute 
 means money given for the benefit of the master, but the 
 master here had no benefit; he was not obliged to clothe 
 the boy before he was his apprentice. (1) 
 
 A pauper’s indenture covenanted, that 44 sufficient 
 “ meat, drink, apparel of all kinds, physic, surgery, 
 44 and lodging, and all other necessaries, during the 
 “ same term, to be found and provided for the said ap- 
 « prentice by the said father , which the said father for 
 “ himself, his executors and administrators, doth co- 
 44 venant and agree to find the said apprentice during 
 44 the said term: for which purpose the said master is to 
 44 allow him , or them , the sum of four shillings per week, 
 44 weekly during the said term.” A proportionable 
 deduction of the weekly allowance was further agreed to 
 be made for voluntary absence. The indenture was not 
 stamped with a six-penny or twelve-penny stamp under 
 8 & 9 Anne. The court were unanimous, that it was 
 unnecessary: for there was nothing before them to shew 
 that the four shillings a week was not an equivalent. 
 
 (1) Rex v. North Owram, % Str, 113a. Burr. S. C. 145* 
 
 Aston 
 
a Settlement by Apprenticeship . 
 
 Aston J. hinted, that the 45 th sect, of 8 Anne, c. 9. 
 which says, “ that where any thing, or things, not being 
 lawful money of Great Britain, shall be directly or 
 indirectly given,” means such other equivalents, as 
 a horse, or other valuable thing of that sort, and did 
 not apply to an agreement “ to provide necessaries for 
 “ a son.” (1) 
 
 «( 
 
 a 
 
 463 
 
 So a pauper covenanted by his indentures, “ that he Apprentice 
 u would at his own expence provide for himself meat, hntjing h,!i 
 
 , # f 1 y own meat, 
 
 <s drink, washing, lodging, apparel, and physic, during &c. 
 
 ‘ the termand there was a covenant on the part of 
 the master to pay the pauper for the first three years five 
 shillings per week, six shillings per week for the suc¬ 
 ceeding two, and seven shillings a week for the remain¬ 
 der of the term, with a proviso, that he should not be 
 entitled to wages during absence from sickness or negli¬ 
 gence. There was no stamps and it was held unnecessary 
 upon the principle of the last case, that the master paid 
 an equivalent, and received no benefit within the mean¬ 
 ing of the statutes. (2) , 
 
 In a latter case, it was held that such an agreement Meat, & c . 
 was not subject to the tax, although the master did not ouTstipuS-" 
 stipulate to pay an equivalent for those things which tion for an 
 he was exempted by covenant from supplying for his equlvalent * 
 apprentice. 
 
 A father bound his son apprentice under an indenture 
 for four years, to learn the trade of a shoemaker, in 
 which was a covenant by the father of the apprentice, 
 (i that he would at his own charge find and provide for 
 “ his son good, competent, and sufficient meat, drink, 
 fi< and lodging, on every Sunday in the year, during the 
 
 (1) Rex v. Portsea, Burr. S. C. (2) Rex v. Walton in Le Dale, 
 * 34 * 3 Term Rep. 515. 
 
 “ said 
 
4^4 
 
 Of the Binding necessary to gain , fyc. 
 
 44 said term; and would provide him with clothes and 
 44 apparel of all sorts, except working aprons and shoes, 
 44 and also washing.” There was also [inter alia) a co¬ 
 venant on the part of the master to provide for the ap¬ 
 prentice meat, drink, and lodging, except on Sundays, 
 during the term. The indenture was properly executed 
 and attested, and written on a five shilling stamp. The 
 pauper served under it for four years, for six days and 
 nights each week; and went to his father’s, in another 
 parish, every Sunday. The pauper’s father expended 
 5I. and upwards in clothing his son and providing meat, 
 drink, &c. for him on Sundays during the four years 
 under this covenant: for this no additional duty was 
 paid according to 8 Anne, c.9. 
 
 Lord Kenyon, C. J. 44 This has been vexata questio ever 
 44 since I came into Westminster-hall; and various opinions 
 44 have been entertained upon it. It is true, that if an in- 
 44 denture be taken to the stamp office, they will set their 
 44 value upon every supposed benefit to the master for the 
 44 sake of the revenue; but that is by no means decisive. 
 44 The question depends on the Stat. Anne, c. 9. s. 22. 
 44 45.; the former of which sections imposes a duty on all 
 44 sums of money given with any apprentice, &c.; and 
 44 the latter enacts, that where any thing, not being mo- 
 44 ney, shall be given, contracted for, or secured, to or 
 44 for the use or benefit of the master, the duty shall be 
 44 paid for the full value of such things, in the same man- 
 44 ner, &c. The latter provision was inserted for the 
 44 purpose of protecting the revenue from any fraud which 
 44 might otherwise be practised, by the parties giving 
 * 4 something in lieu of money. For if, as in the case put 
 44 by Aston, Justice, a horse, or other valuable thing of 
 44 that sort, be given by the friends of the apprentice 
 44 to the master, that must be considered to be a benefit 
 44 to the master, for which a duty should be paid. It 
 
 44 occurred 
 
 <• 
 
Of the Duty « 
 
 (i occurred to me early in the argument that, in order to 
 “ see what would or would not be considered as a benefit 
 <c to the master, it was necessary to inquire what were 
 44 the duties that resulted from the bare relation of master 
 “ and apprentice. And I think that the statute of 
 “ S&p W.III. c.30. s.£. throws a great deal of light upon 
 “ that point; because if, from the time of the statute of 
 % * Elizabeth to that time, masters could not be compelled 
 “ to provide for parish-apprentices, and that law was 
 44 made for the purpose, it shews that the obligation of 
 44 providing for apprentices did not result from the mere 
 t6 relation of master and apprentice; for if it did, that 
 44 part of the statute of Will. III. was unnecessary. The 
 44 case of parish apprentices is the only one where an ap- 
 46 prentice can be put out nolens volens; all the others 
 44 depend on the express stipulations to be made by the 
 44 parties interested. It has never been held that the ob- 
 44 ligation of the master extended to the providing of 
 44 clothes for the apprentice, and yet I cannot distinguish 
 44 that from the obligation to provide sustenance: for the 
 44 former are equally necessary with the latter; and in 
 44 other cases than those of parish apprentices, clothes are 
 44 generally provided by the friends of the apprentice^ 
 44 But if every thing is to be valued, and a duty set upon 
 44 it, from which a benefit arises to the master, it might 
 44 be equally said, that the earnings of the apprentice 
 44 should be liable to the duty. The argument therefore, 
 44 that every benefit which the master derives from the 
 44 apprentice is liable to this duty, by proving too much, 
 44 proves nothing. The authority of Aston J. Justice 
 44 is in all cases worth resorting to, but particularly so 
 44 in cases of sessions law, in which he was remarkably 
 44 conversant. And his opinion, in the case alluded to, is 
 44 very strong to this point. I think, therefore, that the 
 44 clear meaning of the statute of Anne is, that where 
 44 money, or money's worth, is given to the master by 
 vol. 1. 11 h « the 
 
4 
 
 Appren¬ 
 tice’s earn¬ 
 ings. 
 
 Apprentices 
 put out at 
 parish 
 charge. 
 
 By public 
 charity. 
 
 Of the Binding necessary to gain , Sfc. 
 
 « the friends of the apprentice, by way of premium, a 
 6i duty ought to be paid for it; but, tnat where meat, 
 (c clothes, &c. are to be provided by the mcistei' (i), no 
 i6 duty is payable, because there is not any thing given 
 a to the master.” (2) 
 
 In a more recent case, in addition to the pauper s agree¬ 
 ment^ to find himself in clothes, board, washing, and 
 lodging, it was stipulated, that the master should allow 
 him full journeyman’s wages, and have iour-pence out 
 of every shilling of his earning. But it was thought too 
 clear to admit of argument, that a part of the appren¬ 
 tice’s earnings reserved to the master was not a benefit 
 liable to duty under the statute. For by law, he was 
 entitled to the whole, and might rather be said to have 
 given up that part which he did not reserve, than to have 
 
 acquired any thing. (3) 
 
 Sect. 40. expressly exempts from duty, money given 
 with apprentices, in two cases. 
 
 1 st. Where the apprentice or servant is « put out at 
 < e the common or public charge of any parish or town- 
 e< ship.” These words comprehend not only parish ap¬ 
 prentices, formally bound out by parish officers with the 
 assent of two justices, but voluntary apprentices also, pro¬ 
 vided the master’s fee or premium is taken from the pub¬ 
 lic parish fund. (4) 
 
 The 2d exception is, of money paid (( out of any 
 
 (j) Sic in orig. Qu. If it should not 
 be, by them for the apprentice. 
 
 (a) Rex v. Leighton, 4 Term 
 Rep. 73a. 
 
 (3) Rex v. Wantage, I East, 601. 
 See also Rex <u. Bradford, i Maule 
 and Selw, 151. post. 
 
 (4) Rex v. St. Petrox in Dart¬ 
 mouth, 4 Term Rep. 196. The 
 words, however, of 44 Geo. III. c. 98. 
 differ somewhat from those of 8 Anne, 
 c. 9. See post. 474. 
 
 fC public 
 
46'7 
 
 Of the Duty. 
 
 <£ public charity.” The court has given a liberal con¬ 
 struction to this clause. They have held therefore, that 
 it need not be a permanent charity . 
 
 In the parish of St. John’s, Wapping, there was a vo¬ 
 luntary annual subscription by divers of the inhabitants, 
 for putting apprentice, boys and girls brought up at the 
 parish charity-school. Four trustees and a treasurer were 
 annually elected to manage the charity, and a number of 
 children were annually bound out. This was held a 
 public charity, and within the proviso. A boy, therefore, 
 bound by indenture, whose master received five pounds 
 from the trustees of this charity, gained a settlement, al¬ 
 though not stamped with a stamp, denoting the receipt of 
 this duty. For per Lord Mansfield, this is a public cha¬ 
 rity. It is not necessary that it should he a permanent cha¬ 
 rity. The reason of the distinction between a public and 
 private charity is obvious. A private charity may be 
 calculated to evade the act, which a public one cannot 
 be supposed to be. (i) 
 
 Neither is the extent of the fund, or number of its 
 objects material. The criterion of a public charity, within 
 this act, appears to be, that the object of the charity 
 should be general, without having any particular indivi¬ 
 duals in contemplation at the time it is created, as other¬ 
 wise the duty might be easily evaded. 
 
 A woman bequeathed, among other charities* by her 
 will, “ to Clifton, (the parish in which she resided) fifty 
 “ pounds, to be given as my brother thinks fit; some of 
 s ‘ it to put .out children apprentices.” Three children 
 were put out by the brother under this bequest. Seven 
 pound was given to the master with one of them, and it 
 *'as expressed in the indenture to be charity-money, but 
 
 * * • . u . y v n^ * 
 
 (i) Rett v. St. Matthew's Bethnal Green, Burr. S. C. 574. 
 
 * h h 3 ' there 
 
 Charity net 
 permanent. 
 
 Extent of 
 fund imma¬ 
 terial 
 
463 
 
 Of the Binding necessary to gain , $c. 
 
 there was no stamp denoting the payment of the six-penny 
 duty, nor was it paid. The court of quarter session 
 found that it was a public charity, and that the said le¬ 
 gacy (which w r as charged on lands) was not paid for eight 
 years after the will was proved, and on that account 
 seventy pounds were paid. It was argued, that this was 
 not a public, but a private charity, being left entirely to 
 the choice of the testator’s brother, whether to put out 
 children apprentices with this money or not. But the 
 court held it a public charity, and that the pauper gained 
 ^ settlement. (i) 
 
 These stamp duties have been altered considerably by 
 44 Geo. III. chap. 98. It was necessary, however, to 
 ^tate the substance of the former statutes, not only be¬ 
 cause all indentures of apprenticeship made prior to the 
 10th of October 1804, are regulated by them, but also, 
 because 44 Geo. III. c. 98* provides, that they shall con¬ 
 tinue in force, except so far as any alteration is thereby 
 expressly made. (2) 
 
 f 
 
 From 10 Sect. i. That, from and after the tenth day of Octo- 
 Dut'ie^&c* her, one thousand eight hundred and four, all and singu- 
 under care lar the duties, allowances, discounts, compensations, and 
 sfoners of drawbacks of stamp duties, and other the duties under 
 stamps, shall t h e care G f the commissioners for managing the duties 
 Cea e upon stamped vellum, parchment, and paper, granted 
 by any act or acts of parliament now in force, shall cease 
 and determine, save and except in all cases relating to 
 the recovering, allowing, or paying any arrears thereof 
 respectively, which may at that time remain unpaid, or 
 to any fine, penalty, or forfeiture, fines, penalties, or 
 forfeitures, relating thereto respectively, which shall have 
 
 (a) Rex v. Clifton upon Dunsmore, (3) Sect. §. post. 
 Burr. i>. C. 697, 
 
 been 
 
4 <x> 
 
 \ 
 
 Of the Duty. 
 
 been incurred at any time before, or on the said tenth day 
 of October, one thousand eight hundred and four. 
 
 Sect. 2. That, from and after the said tenth day of From >o 
 October, one thousand eight hundred and four, in lieu 1804, 
 and instead of the said duties respectively, by this act re- schedules 
 pealed, there shall be raised, levied, collected, and paid, 
 in England, unto His Majesty, his heirs and successors, 
 for and in respect of the several instruments, articles, 
 matters and things, mentioned, enumerated, and de¬ 
 scribed in the schedules marked (A) and (B), hereunto 
 annexed, the several sums of money and duties as they 
 are respectively inserted, described, and set forth in the 
 column of the said schedules, marked (A) and [ B), intitled 
 ft Englandand that there shall be raised, levied, col¬ 
 lected, and paid in like manner in Scotland, the several 
 sums of money and duties as they are respectively inserted, 
 described, and set forth in the column of the said sche¬ 
 dules marked (A) and (B), intitled, t£ Scotland;” and 
 that there shall be made, allowed, and paid, for or in 
 respect of all such articles, matters, or things, as are in¬ 
 serted, enumerated, and described in the schedule marked 
 (C), hereunto annexed, the several allowances, draw¬ 
 backs, or sums of money, as the same are respectively 
 inserted, described, and set forth in the said schedule 
 marked (C). 
 
 Sect. 8. And be it further enacted, that the said se- Duties and 
 veral sums of money respectively inserted, described, and ( ^ ra b ^ l) ^ s 
 set forth in the said schedules marked (A) and (B) as du- and allowed 
 ties payable to His Majesty, his heirs and successors, and d*tkTand 
 the several allowances, drawbacks, and sums of money drawbacks; 
 for or in respect of the several articles, matters, and offormer 
 things inserted, described, and set forth in the said sche- acts d to 
 dule marked (C), shall and may be respectively raised, act, except 5 
 levied, collected, answered, paid, recovered, adjudged, as al 
 
 HH 3 mitigated, v tered. 
 
 

 470 
 
 Of the Binding necessary to gain , fyc. 
 
 mitigated, and allowed, except where any alteration is 
 expressly made by this act, in such and the like manner, 
 and in or by any or either of the general or special means, 
 ways, or methods, by which the former duties under the 
 management of the said commissioners of stamped vel¬ 
 lum, parchment, or paper respectively, and the allow¬ 
 ances and drawbacks under the management of the said 
 commissioners respectively, were or might be raised, le¬ 
 vied, collected, answered, paid, recovered, adjudged, 
 mitigated, and allowed; and the several persons, and 
 also all vellum, parchment, paper, or other material of 
 what nature or kind soever, upon which any matter or 
 thing shall be written, printed, or ingrossed, and by this 
 act respectively made liable to the payment of duty, and 
 also the several other articles, matters, and things, by 
 this act respectively made liable to the payment of duty, 
 or which shall be entitled to any allowance 01 di aw back, 
 as respectively inserted, described, and set foith in the 
 said schedules, marked (A), (B), and (C), shall be, and 
 the same are hereby made, except where any alteration is 
 expressly made by this act, subject and liable to all and 
 every the conditions, regulations, lules, and lestrictions, 
 to which such persons, and also such vellum, parchment, 
 paper, or other material of what nature or kind soever, 
 upon which any such matter or thing as aforesaid shall 
 be written, printed, or engrossed, and other articles, 
 matters, and things as aforesaid, were generally, or spe¬ 
 cially subject and liable by any act or acts of parliament 
 in force before or on the said tenth day of October one 
 thousand eight hundred and four, respecting the duties 
 under the management of the said commissioners of 
 stamped vellum, parchment, and paper; and all and every 
 pain, penalty, fine, or forfeiture (except where any al¬ 
 teration is expressly made by this act), for any offence 
 whatsoever, committed against, or in breach of any act 
 
 or acts of parliament now in force, before or on the said 
 
 7 . tentl* 
 
Of the Duty. . 47^ 
 
 tenth day of October one thousand eight hundred and 
 four, for securing the duties under the management of 
 the said commissioners of stamped vellum, parchment, 
 and paper, or for the regulation or improvement of the 
 said duties, and the several clauses, powers, provisions, 
 directions, matters, and things therein contained (unless 
 where expressly altered by this act), shall, and are hereby 
 directed and declared to extend to, and shall be respec¬ 
 tively applied, practised, and put in execution, for and 
 in respect of the several duties by this act charged, im¬ 
 posed, and allowed, in as full and ample a manner, to all 
 intents and purposes whatsoever, as if all and every the 
 said clauses, provisions, powers, directions, fines, pains, 
 penalties, or forfeitures, matters, and things, were 
 particularly repeated and re-enacted in the body of 
 this act. 
 
 Sect. 24. That in any case where it shall appear to 
 the commissioners of His Majesty’s stamp duties, upon 
 oath or affirmation, to be made before any one or more 
 of the said commissioners (which oath or affirmation he 
 or they is or are hereby authorised to administer), or other¬ 
 wise to their satisfaction, that any instrument, matter, or 
 thing whatsoever (except bills of exchange, promissory 
 notes, or other notes, drafts, orders, or receipts, required 
 by law to be ingrossed, printed, or written on stamped 
 vellum, parchment, or paper), hath been ingrossed, 
 printed, or written on vellum, parchment, or paper not 
 duly stamped with a stamp of the value by this act re? 
 quired, either by accident or inadvertency, or from ur¬ 
 gent necessity, or unavoidable circumstances, and without 
 any wilful delay or intention in any party or parties 
 thereto, to evade the duties by this act imposed, or to 
 defraud His Majesty thereof; and such instrument, mat¬ 
 ter, and tiling, shall be brought to the said commissioners 
 to be stamped within twelve months after the making or 
 
 n h 4 execu- 
 
 Where in¬ 
 struments, 
 except bills 
 of exchange, 
 &c. have, 
 without 
 fraudulent 
 intention, 
 been written 
 on improper 
 stamps, the 
 commis¬ 
 sioners m$y 
 remit the 
 penalty, if 
 brought to 
 be duly 
 stamped 
 within 12 
 months after 
 execution. 
 
47 * 
 
 Of the Binding necessary to gain , 8$c. 
 
 execution thereof, it shall be lawful for such commis¬ 
 sioners of His Majesty’s stamp duties to remit the penalty 
 payable on stamping such instrument, matter, or thing, 
 or any part thereof, as they shall deem expedient; and 
 every person concerned in ingrossing, printing, or writing 
 any such instrument, matter, or thing, or in making or 
 executing the same, shall be, and he or she is hereby 
 freed, discharged, and indemnified from all further pe¬ 
 nalties or forfeitures, than such penalties or forfeitures 
 or such parts thereof, as shall not be remitted by or¬ 
 der of the said commissioners of His Majesty’s stamp 
 duties. 
 
 Schedule A. 
 
 These stamp duties, so far as respect instruments which 
 are executed in England, and relate to settlements by ser¬ 
 vice or apprenticeship, are thus set forth in schedule (A) 
 to which the act refers. 
 
 Articles to 
 serve clerk 
 to anattor- 
 i>ey, in 
 courts at 
 Westmin¬ 
 ster. 
 
 Articles or contracts whereby any person shall become 
 bound to serve as a clerk, in order to his admission as a 
 solicitor or attorney, in pursuance of the laws now in 
 force in any of His Majesty’s courts at Westminster, 
 
 3 iol. 
 
 Articles of Articles or contracts whereby any person shall become 
 clerks .to bound to serve as a clerk, in order to his admission as a 
 oth^rcourts, solicitor or attorney in any of the courts of great sessions 
 in Wales, or in the counties palatine of Chester, Lan¬ 
 caster, or Durham, or in any court of record in England, 
 holding pleas, where the debt or damage shall amount to 
 forty shillings or upwards, not being in any of His Ma¬ 
 jesty’s courts at Westminster, 55I. 
 
 Assignment of such articles or contract, or new ar- 
 ments there- tides or contract, for the residue of a term, occasioned 
 
 of ' by the death of any former master, il. 10s. 
 
 „, 5 Agree- 
 
473 
 
 Of the Duty , 
 
 Agreement made in England under hand only, where Agree- 
 the matter thereof shall be of the value of 20I. or up- rner ' ts * 
 wards, whether the same shall be only the evidence of a 
 contract or obligatory upon the parties from its being a 
 written instrument, upon any number of words, not 
 amounting to thirty common law sheets (calculated at 
 seventy-two words to each sheet) of which any such agree¬ 
 ment shall consist, 16s. 
 
 And for every entire quantity of fifteen common law A s ree 
 sheets (calculated at seventy-two words to each sheet) of 1 
 which any such agreement, together with every schedule, 
 receipt, instrument, or other matter put or indorsed 
 thereon, or annexed thereto, shall consist, over and 
 above the first fifteen common law-sheets, a further duty 
 of 16s. 
 
 It has been held that when an apprentice covenanted 
 by his indentures to allow his master 2s. per week, and to 
 have wages and provide for himself, the indentures did 
 not require an additional stamp under this act, for this 
 cannot be considered as a sum given to the master who 
 had a right to the whole earnings of his apprentice, but 
 allowed by way of wages such a sum as they are com¬ 
 puted at minus 2s. per week on account of his providing 
 for himself. (1) 
 
 Special Exemptions . 
 
 Memorandum or agreement for the hire of any la- Exemptions, 
 bourer, artificer, manufacturer, or menial servant. 
 
 (1) Rex v. Bradford, 1 Maule and SeUv. 15r. 
 
 Inden- 
 
474 
 
 Indenture? 
 of appren¬ 
 ticeship, 
 
 Exemption. 
 
 No techni¬ 
 cal word to 
 
 Distinction between imperfect Contracts 
 
 Indenture of apprenticeship where the sum or value 
 given, paid, contracted or agreed for, with or in relation 
 
 to such apprentice, 
 
 shall not exceed 
 
 £ 10 
 
 £ 
 
 155. 
 
 exceeding 
 
 £ 10, 
 
 and not exceeding 
 
 20 
 
 1 
 
 10 
 
 exceeding 
 
 30, 
 
 and not exceeding 
 
 5 ° 
 
 2 
 
 10 
 
 exceeding 
 
 5 °> 
 
 and not exceeding 
 
 100 
 
 5 
 
 0 
 
 exceeding 
 
 100, 
 
 and not exceeding 
 
 300 
 
 12 
 
 0 
 
 exceeding 
 
 CO 
 
 0 
 
 0 
 
 «- "9 
 
 
 20 
 
 0 
 
 Special Exemption . 
 
 Indentures for binding poor parish children appren¬ 
 tices, or other children, by any public charity. 
 
 Assignment of indenture of apprenticeship (except of 
 poor parish children, or other children, by any public 
 charity), 15s. 
 
 II. Of the Distinction between imperfect Contracts of Ap~ 
 prentices/iip, arid Contracts of Hiring and Service . 
 
 It has been shewn already, that particular forms are 
 required to render a contract of apprenticeship valid (1), 
 which are unnecessary in the case of hiring of a servant. (2) 
 
 This latter contract, however may be executed with 
 all the formalities incident to deeds of apprenticeship. It 
 is sometimes difficult therefore to distinguish between 
 them; especially as cases of imperfect apprenticeship, by 
 reason of their defect, approach nearer in resemblance 
 to the more loose form of contracts for service under an 
 agreement of hiring. 
 
 It seems at one time to have been thought necessary 
 to use the term apprentice , in order to constitute a binding 
 
 (1) Ante, 449. (i) Ante, 303,&c. 
 
 as 
 
 1 
 
of Apprenticeship and of Hiring . 
 
 as such (i). But neither this, nor any other technical 
 expressions are essential, provided the parties shew by the 
 words used in the instrument an evident intention to con¬ 
 stitute the relation of master and apprentice. (2) 
 
 The court indeed seem to regret that a criterion, equally 
 certain and more general, has not been resorted to (3). 
 This might have been, if regard being had to the deri¬ 
 vation of the term (4), every agreement by which the 
 master engaged to teach, and the person agreed with un¬ 
 dertook to learn a trade, without contracting to serve in 
 other respects, had been held an apprenticeship. (5) 
 
 But this distinction has been overlooked, and a settle¬ 
 ment may be gained as an hired servant, although the 
 object of the agreement and service be to learn a trade (6). 
 As the parties may lawfully enter into either engagement, 
 the particular nature of the agreement is to be collected 
 from their intention at the time of making it. Where 
 the contract is in writing, this must be drawn from the 
 words made use of; “ for parol evidence cannot be re- 
 “ ceived to contradict a written agreement. But it may 
 “ to ascertain a fact collateral to the written instrument, 
 « in order to explain the intention of the parties; the 
 “ written instrument being in some measure equivo- 
 “ pal.” (7) 
 
 (1) See 3 B-ic. Abr. 546. and Rex 
 v. Little Bolton, post. (5). 
 
 (a) Per Lord Kenyon, C. J. Rex 
 ■ v . Laindon, 8 Term Rep. 379. PI. 
 1000.; and in Rex v. Rainham, i East, 
 531 . 
 
 (3) Per Lawrence, J. Rex v. Lain- 
 jlon, ante, (a). 
 
 (4) From Apprendre, to learn. 
 
 £5) Per Lord Ellenborough, C. J. 
 
 Rex v. F.ccleston, 2 East, 298. Per 
 Lord Kenyon, C. J. Rex v. Laindon, 
 ante, (2). Per Lord Mansdeld, C.J. 
 Rex v. Little Bolton, Cald. 367. But 
 he afterwards held a contrary opinion 
 with the rest of the court. 
 
 (6) Rex v. Hitcham, ante, 257, and 
 the cases post. 
 
 (7) Per Lawrence, J. Rex v. Lain¬ 
 don, ante, (2). 
 
 / 
 
 Upon 
 
 475 
 
 constitute a 
 binding;. 
 
I 
 
 Distinction between imperfect Contracts 
 
 Upon this principle, an agreement which is defective as 
 a contract of apprenticeship, from any oi the following 
 circumstances, cannot be converted into or considered 
 as one for hiring as a servant so as to confer a settlement. 
 
 If the parties use the term apprentice in describing the 
 relation to be created by their contract, or otherwise ex¬ 
 pressly declare their intention to stand in the situation of 
 master and apprentice. 
 
 G., aged twenty-two, agreed with a stone mason, that 
 the latter should take him apprentice for six years, and 
 mason, &c. teach him his trade; and the master to provide him meat, 
 drink, washing, lodging, and clothing, during his appren¬ 
 ticeship , and G. to live with, and work for him, as his 
 apprentice during that term , and that indentures should be 
 executed between them accordingly; but no such indentures 
 were executed, dhe pauper gained no settlement as an 
 apprentice, because there were no indentures, nor as an 
 hired servant, for he was engaged to- serve as an ap¬ 
 prentice. (i) 
 
 A parol agreement was proved between the pauper’s 
 grandfather and the master, to take the pauper as an ap 
 prentice , and no indentures were executed.—He gained 
 no settlement. (2) 
 
 So where the agreement in writing recited, 44 that the 
 < 4 pauper is to be bound apprentice but it was not stamp¬ 
 ed, no settlement was gained. (3) 
 
 The pauper, W. H., being fourteen years of age, went 
 
 (1) Rex v. Whitchurch Canonico- (a) Rex v. Kingsweare, Burr. S. C. 
 rum, ante, 3x4. Rex v> St. Mary 839* 
 
 Kallendar, Burr. S.C. 274. S.P. Rex (3) Rex *•. All Saints, Hereford, 
 •v. Margram, where the agreement was Burr. S. C. 656. and the cases there 
 « to serve seven years as an appren- cited. 
 
 “ tice,” 5 Term Rep. 153. 
 
 as 
 
 Contracts of 
 apprentice¬ 
 ship give no 
 settlement. 
 
 1. When 
 term ap¬ 
 prentice 
 used. 
 
 Binding as 
 apprentice 
 to stone 
 
of Apprenticeship and of Hinng* 
 
 as an apprentice to K. and continued to serve him as an 
 apprentice for five years. The following indenture was 
 executed by K. the master and J. Id. the father, but not 
 by W. H. the pauper. This agreement made ist May 
 1796, between N. K. Weever and J. H. Minii; and the 
 said N. K. shall teach or cause to be taught W. H. the 
 son of J. H. the art and mystery of weaving, &c. in the 
 best v r av he can for five years, hi. K. to find W. H. all 
 utensils belonging to the business, and W. H. to have 
 half what he earns, &c.—The agreement was signed and 
 sealed by N. K. and J. H. The court w^ere of opinion, 
 that W. H. gained no settlement by the five years service 
 under this agreement. There was neithei a binding of 
 the son himself nor of his father for him. There w as no 
 contract for his serving his master; he could neither have 
 been proceeded against under the statutes for regulating 
 apprentices, nor could an action be brought against any 
 one for harbouring him as an apprentice. (1) 
 
 2d. Although the term apprentice is not made use of, 
 yet if the party gives a premium to the master who en¬ 
 gages to teach him some trade or mystery, it is a contract 
 of apprenticeship. For a servant never gives such a con¬ 
 sideration (2); and such agreements would otherwise evade 
 the duties imposed by 8 Anne c. 9. 
 
 The Sessions found that the pauper went to his master 
 (who was a carpenter) lor the purpose of being his ctppi en¬ 
 tice for four years, in order to learn the trade, and 
 to save the expence of the indenture and duty, foul 
 guineas consideration being paid by the pauper to the 
 master, they signed an agreement upon unstamped papei, 
 wherein the pauper covenanted to serve his mastei in the 
 business or trade of carpenter for four years, and the con- 
 
 (0 Rex v. Cromford, 3 East, 25. (*) Per Lord Mansfield, Rex v. 
 
 tnte> 45J . Highnam, a Const. 373. Pl- 436 - 
 
 si deration 
 
473 
 
 2Distinction between imperfect Contracts 
 
 sideration of the agreement was, that the master ao pay 
 him so much a week, which wages were to be inci eased 
 yearly, until the expiration cl his time* The com t 
 thought that tnis was manifestly a fraud on the revenue, 
 and that the relation intended was that of an apprentice, 
 which being void for want of proper stamps, the pau¬ 
 per acquired no settlement by serving under the agiee- 
 menti (i) 
 
 In this case the intent to evade the duty was expressly 
 found: but the construction of the agreement is the same 
 where this intention is not so manifest# 
 
 u 
 
 66 
 
 A pauper by a written agreement on unstamped paper, 
 agreed to serve three years, to learn the business ol a 
 carpenter, and to receive Wages, which were to in- 
 (i crease each succeeding year.” The pauper also proved 
 by parol, that at the time of signing the above agreement, 
 he agreed to give his master three guineas, as a premium 
 to teach him the trade, and was not to be employed in 
 any other work than that of a carpenter: it was held a 
 defective contract of apprenticeship. (2) 
 
 3. Deed 
 
 executed in 
 due form. 
 
 3d, It seems further, that wherever the contract is ex¬ 
 ecuted with the solemnities incident to a binding by deeu, 
 and the object of the agreement is to instruct the party 
 serving 1 , it is rather to be considered as a contract of ap- 
 prenticeship, than of hiring as a servant. 
 
 The pauper, M. Smith, agreed with T. Hills, a sawyer, 
 to serve him for three years, at weekly w T agcs. “ And 
 “ the said T. TI. doth agree and promise to learn the 
 
 (1) Rex v. Highnam, Cald. 491. Sundays, and to be paid only a part of 
 It was also proved by the pauper, that his stipulated weekly wages proportion- 
 at the time of signing this agreement, able to the time he should work, 
 it was further agreed by parol, that the (a) Rex v. Laindon, 8 Term Rep. 
 pauper should find his own diet and 379. ante, 475. 
 lodging, was to be his own master on 
 
 
 “ said 
 
of Appre 7 iticeship and of Hiring* 479 
 
 * £ said M. Smith, the art and mystery of a sawyer, which 
 “ he now follows.” It was further agreed, il he should 
 wilfully lose any time, he was to pay H. three shillings a 
 day; and if he repented of the agreement before the time 
 expired, to pay H. 1 ol.; and if he should be incapable of 
 working, he was not to receive any wages. The agree¬ 
 ment was signed, sealed, and delivered by both parties, 
 and lawfully stamped, and no premium was paid by the 
 pauper to his master. 
 
 Lord Kenyon, C. J. The legal conclusion can only be 
 drawn in one way, namely, that this was a contract of 
 apprenticeship. The instrument was under seal, and 
 need not be indented. It has been determined, that the 
 party serving need not be retained eo nomine as an appren¬ 
 tice: but that it is enough if the purpose of the contract 
 be, that the one shall teach and the other learn the trade. 
 
 That is the case here, for the master engaged to learn, 
 i.e. to teach the pauper the art and mystery of a sawyer; 
 and the object of the pauper was to be taught the busi¬ 
 ness. No technical words are necessary to constitute the 
 relation of master and apprentice; nor is it necessary that 
 there should be any premium given to the master. 
 
 Mr. J. Le Blanc, the only remaining judge who gave 
 an opinion, observed, that it was immaterial to the pre¬ 
 sent case, whether the contract was to serve as an appren¬ 
 tice, or as an hired servant; for, having served a year, 
 he gained a settlement either way. (1) 
 
 But where none of these circumstances occurred to Contracts 
 determine the nature of the agreement, it has been held, v XXer-* 
 that a contract to serve for the purpose of learning a vants to 
 
 . . 0 taught, 
 
 trade, is an hiring as a servant. 
 
 J O 
 
 (i) Rex %\ Rainham, i East, 531. per served, if he had been married 
 But it would have been necessaiy to when he made the contract, or had not 
 determine, in what capacity tire pau* abided in the service for an entire year. 
 
 I St. If 
 

 480 
 
 Distinction between imperfect Contracts 
 
 I. If he Is 
 to do all 
 sorts of 
 work. 
 
 rst. If the party engages to do the duties of a servant} 
 ulterior to such as are incident to the trade he learns; 
 for the extent of the service points out and explains the 
 relation in which the parties intended to stand towards 
 each other. (1) 
 
 The pauper clubbed, i. e. contracted to serve for the 
 purpose of being taught the trade of a bricklayer, and to 
 nave less wages, on account of learning the trade. He 
 was to serve three years, at six shillings a week the first 
 year, seven shillings the second, and eight shillings the 
 third. An agreement in writing was to be prepared, 
 but was never drawn up. No premium was paid, and 
 lie was to do any work his master set him about, and 
 was not to be absent from his business during any part of 
 the time. 
 
 - ' £*• j ; w 
 
 Lord Kenyon, C. J. said, “ it was impossible to raise 
 “ a doubt upon the case ; the part which states that the 
 « pauper was to do any work his master set him about is 
 6i decisive to shew, that he must be considered as an 
 <c hired servant, and although one of his objects w'as to 
 “ learn a trade, that was deemed an equivalent to part 
 u of his wages.” (2) 
 
 And the same was held, where, to an agreement in 
 other respects similar to the preceding, it w r as added, 
 that if the pauper was prevented from working at any 
 time by badness of weather, illness, or his master’s not 
 having employment for him, a proportionable deduction 
 
 (1) But this rule applies only to Burr. S. C. 694. Rex n>. Birraing- 
 equivocal contracts. If a yearly hir- ham, ante, 337-33S. 2 ")ougl. 333. 
 ir.g is made out, a settlement may bo Rex n>. Alton, Cutd. 424. 
 gamed, although the agreement be to (2) Ilex v. Coltishall, 5 Term 
 work, only at a particular trade. Rep. 193. and see the opinion of 
 Rex v. Buckland Denham, ante, 337. Ashhurst, J. Rex v. Highnam, ante, 
 where the principle is not disputed, 478. 
 
 should 
 
I 
 
 of Apprenticeship , and of Hiring. 481 
 
 should be made from his week’s wages for such loss of 
 time. (1) 
 
 2d. There is a case which, unless it is to be considered 2 , Contract 
 as <c an anomalous case (2),” seems to go the length of not appear- 
 establishing the following principle:—That all contracts asVn Ip-^ 
 of service, for the purpose of instruction, which are in- 
 foimal as contracts of apprenticeship, are to be taken as no premium 
 contracts ol hiring, where no direct circumstance appears glven ' 
 to shew, that a contract of apprenticeship was intended, 
 and no premium is given to the master. 
 
 This rule does not seem unreasonable, unless it leads 
 
 to uncertainty. 
 
 It is an established maxim ol law, that ambiguous in¬ 
 struments are to receive a judicial construction, ut res 
 magis valeat quam pereat. Independent of which, the old 
 decisions lean neither unwisely, nor unconstitutionally, 
 in favour of settlements. (3) 
 
 The pauper being unmarried, aiid having no child, Service by 
 went to one S. a weaver, and asked him if he would teach written 
 
 i . . agreement 
 
 him to work counterpanes. S. answered he would, if he for two or 
 would work with him two years and a half or three years ; [ a e ^ 
 
 and the pauper’s earnings were to be divided between to vveave 
 h an d he to find himself with meat, drink, washing, panes 
 
 and clothes. He was engaged on these terms, and an 
 agreement in writing was entered into accordingly. He 
 worked under this agreement a year and an halt; his 
 master finding him in looms, loom room, and materials, 
 when he gave his master twenty shillings to be free, hav¬ 
 ing then married. He continued to work journey-work 
 
 (1) Rex v. Martham, i East,339. (3) See the opinion of Buller, S\ 
 
 (a) Verba Kenyon, C. J. R$x v. Rex -v. Little Bolton, Cald. 370. 
 
 Laindon, ante, 475. (2). post.482.fi). 
 
 V"ol. r. 1 t with 
 
482 
 
 By unwrit¬ 
 ten agree¬ 
 ment. 
 
 Distinction between.imperfect Contracts 
 
 with the same master for a year. S. never employed thv 
 pauper in any work but weaving. He received the monej > 
 and paid the pauper one half, and looked on it, that he 
 had a right to receive it, but sometimes let the pauper do 
 so. Lord Mansfield was originally of opinion, “ If an 
 indenture be not made necessary [i, e. to constitute a bind¬ 
 ing as an apprentice), there could be no doubt as to its 
 being an apprenticeship ; for the pauper is to be taught , 
 and pays a consideration for it, and is to do no other 
 work: but if these agreements were allowed to give set¬ 
 tlements, there would be an end of indentures of appren¬ 
 ticeship, and also of the revenue derived from thence.” 
 But Buller J. doubting, the court took time to consider, 
 and Lord Mansfield on another day delivered their opi¬ 
 nion: “ We have looked into the authorities, and find 
 that all those cases of apprenticeships which have been 
 holden to be defective, and not convertible into hirings 
 and services, speak of the pauper as an apprentice, and 
 that he was to serve as such. There is no such statement 
 here, and it is therefore a good hiring and service.” (i) 
 
 And in a very recent case, in which the circumstances 
 were similar, but the agreement was not in writing, the 
 court held it an hiring and service upon the authority 
 of the foregoing decision. Lord Ellenborough, C. J. 
 declared, that he was not convinced by the reasoning 
 of the preceding case, and that if the point were new, 
 he should think otherwise, and “ that where the con¬ 
 tract was, that the master should teach the other a trade, 
 and the latter was to do nothing idterior the employment 
 in that trade, it was a contract apprendre , in the true 
 sense of the word.” 
 
 i The other judges coincided in opinion upon the same 
 ground, Le Blanc, J. adding, “ that he did not think 
 
 (i) Rexa.\ LittU Boltcn, Cald. 367. 2 Eott, 221. PI. 264. 
 
 that 
 
of Apprenticeship , and of Hiring . 
 
 that the King v. Little Bolton had been overruled in 
 principle (i).” And in a subsequent case Lord Ellen- 
 borough, C. J. observed, that whatever question there 
 might have been on the subject at first, the convenience 
 of the thing is in support of the King v. Little Bol¬ 
 ton. (2) 
 
 In a subsequent case the pauper R. L. being a minor 
 hired himself for a year to J. P. brickmaker: three 
 months afterwards, being still a minor, he signed the 
 following agreement on unstamped paper, and not un¬ 
 der seal:—“ A memorandum and agreement between 
 J. P. and R. L. This agreement, made 29th September 
 1 Sod, between J. P. brickmaker of S., &c. and R. L. 
 I R. L. do hereby covenant and agree to serve J. P. for 
 three years to learn to make bricks and the art of burn¬ 
 ing, on condition of the said J. P’s. finding me the said 
 R. L. sufficient victuals, drink, lodging, and clothes, 
 and to be decently clothed in the habit of a working 
 man at the expiration of the three years, on condition 
 of my helping to attend the kiln on nights. Whereas 
 I have hereunto set my hand, this 29th September, 
 1806, R. L.” Attested by tw r o witnesses, and on the 
 margin was written, “I J. P. consenting to the above 
 agreement.” The court decided that supposing the 
 instrument to be intended as a contract of apprentice¬ 
 ship and invalid for want of a stamp, it did not put an 
 end to the original valid contract of hiring, under which 
 R. L. by having served a year acquired a settlement at 
 all events. But two of the judges (3) gave an express 
 opinion, that “ the instrument was a contract of service 
 u and not of apprenticeship; there was an original good 
 contract for a year between the parties as master and 
 
 (1) Rex v. Eccleston, 2 Ea;t, 298* (3) Be Blanc and Bayley,J.; and the 
 
 (^,) Rc x, if, Shenfieid, 14. East, 546. remaining judgments seem to lean 
 
 that way. 
 
 112 
 
 servant 
 
Distinction between imperfect Contracts 
 
 sc servant generally} and after tliree months sci\ice un 
 ss der it, they entered into a new agreement, by which 
 “ the boy was to serve his master for three years, not 
 << generally, but to learn to make bricks and the art of 
 “ burning, upon condition of being found in board, 
 
 “ lodging, and clothes. The meaning of the parties 
 « therefore was, that the general service before con¬ 
 st tracted for should be restrained to such service as 
 “ would enable the boy to learn his master’s business. 
 
 «< jf an apprenticeship had been intended, there would 
 « have been words introduced into the agreement bind- 
 « ing the master to teach the boy; and there being no 
 « SU ch words of obligation on the master, and the writ¬ 
 es ten contract not having the ordinary words of bind- 
 « ino- to serve as an apprentice, and the intent of the 
 « parties as collected from the terms of it, being at least 
 a equivocal; we are warranted by the cases in saying 
 cc that the object of it was merely to confine the general 
 64 service before contracted for, to such part of the mas- 
 44 let’s employ as would enable the boy to learn his busi- 
 44 ness. If this, therefore, was to give an extraordinary 
 44 benefit to the servant, the master might well stipulate 
 44 for' receiving such service without the payment of 
 44 wages, (i) 
 
 Lastly, where a case stated that the pauper being un¬ 
 married and having no child, his father made a verbal 
 agreement with one R. P. framework-knitter, that the 
 pauper should be with him and work with him for two 
 years, and to have what he got, and that he should allow 
 two shillings per week out of his gains to P., viz. is> 
 for teaching him the business of a framework-knitter, 
 pd. for the rent of a frame, and 3 d. for the standing. 
 Nothing was said about his being an apprentice. He 
 served the two years, and had what he earned after the 
 
 ' (2) Verba Bayley, J. Rex v. Shenfield, 14 East, 541* 
 
485 
 
 of Apprenticeship^ and of Hiring . 
 
 2S. per week were deducted by P., who found a frame 
 and all materials, but the pauper paid for the needles, 
 and earned about 1 os. per week. He had no right to 
 work for any body else in P’s. frame, nor did he do so 
 to P’s. knowledge. Pie received no wages, and boarded 
 and slept at his father’s house, where he also had his 
 washing done, and he did not do any act as a servant 
 for P. by his order, and on Sundays he was at his fa¬ 
 ther’s house. 
 
 Lord Ellenborough, C. J. The ground of argument 
 taken is, that the father was the contracting party and 
 could not bind the son. It certainly cannot be con¬ 
 tended that the son would, at all events, be bound by the 
 contract of the father, but in every case, if a contract 
 be made by a person standing in a peculiar relation to 
 another on his behalf and for his benefit, and that other 
 performs his part of the contract, there is no authority 
 which should restrain me from leaving to the jury whe¬ 
 ther he did not adopt the contract. It seems absurd to 
 say, that if a party contract on my behalf that I should 
 do work and I do it, that the rule omnis ratihabitio does 
 not apply. Every jury upon such a question would find 
 a previous mandatum evidenced by the service after¬ 
 wards. Here the son is acting as servant, but if it were 
 doubtful, the sessions have drawn the conclusion and 
 have not submitted to us any question whether he was 
 bound by the contract. The question then is, whether 
 this is a contract of hiring and service or of apprentice¬ 
 ship. It certainly cannot be called an apprenticeship, 
 nor bears any of its forms, for although there is mention 
 made of teaching him the business, and an allowance on 
 that account, yet it enters into the contemplation of the 
 parties to almost every contract of hiring and service, 
 whether the servant has learnt his art; and if not, a 
 consideration is made on the rate of wages. It is the mea- 
 
 1 1 3 sure 
 
Distinction between imperfect Contracts 
 
 sure to which each party resorts in settling the compen* 
 sation, and if the circumstance of the servant’s having 
 to learn his art is to make a difference, it would change 
 the nature of most hiring and service even in the meanest 
 situations. As to Rex v. Little Bolton, without say¬ 
 ing whether one quite approves the principle of that 
 case, it is enough to say that the court has beeu in the 
 habit of acting upon that decision which would make it 
 dangerous to set it aside. I do not say that if that case 
 were erroneous and wholly destitute of legal founda¬ 
 tion, it would not be right to set it aside, but if it stands 
 on plausible grounds, it ought not to be canvassed too 
 nicely. This case is stronger than Rex v. Little Bolton. 
 There the master agreed to teach the pauper, if he would 
 work with him two years and a half or three years, so 
 that the teaching was of the very essence of the contract. 
 Here there is no express contract by the master to teach, 
 only an allowance by the servant out of the earnings for 
 teaching, which perhaps may amount to an implied one. 
 I will not say that an action might not be maintained 
 upon this contract for not teaching, although upon a 
 demurrer to a declaration framed upon it there might 
 be difficulty; admitting, however, that such a contract 
 may be inferred, it is by no means so clear as assumed 
 in argument, and even if it were it w'ould not be so 
 strong as Rex v. Little Bolton, which was an express 
 contract. There Lord Mansfield observed upon the 
 agreement, not speaking of the pauper as an apprentice, 
 and here there is no mention of apprentice except as far 
 as learning and teaching are ingredients in the contract 
 of apprenticeship, which they are in almost every con¬ 
 tract of hiring and service regularly entered into. There¬ 
 fore without saying that Rex w. Little Bolton is not 
 law, we cannot hold that this is not a good hiring and 
 service. 
 
 Le 
 
of Apprenticeship^ and of Hiring, 
 
 Le Blanc, J. The sessions have determined this to 
 he a good hiring and service, and unless the court sees 
 that their conclusion is wrong, we are bound to confirm 
 their order. It is not stated in this case whether the 
 pauper here bound was an adult or infant, it is merely 
 stated he was an unmarried man, having no child. In 
 that situation his father agreed with the master that he 
 should be with him and work for two years, which is all 
 that is stated with respect to the service. The contract 
 is made with another person on his behalf, and he serves 
 under it. That would be evidence under which I should 
 think a jury might infer that he adopted it. The ses¬ 
 sions have so inferred, and there is no objection. If that 
 be so, there is no other difference which can be pointed 
 except the names of the parties, the place and trade, to 
 distinguish this from Rex v. Little Bolton. It will not 
 convert this contract into an apprenticeship, because the 
 party was desirous of improving himself in the trade in 
 which he was to work, or even stipulated for that 
 purpose. Every workman who contracts for his labour, 
 and is not perfect in his art, is desirous of learning, and 
 it forms an ingredient in such contract. The court must 
 see that somewhat more than an hiring and service was 
 intended. Here it was agreed that the pauper should 
 work, and he did so, and he was to allow so much per 
 week to his master for teaching him. This is the only 
 circumstance which is relied upon to shew it an appren¬ 
 ticeship. The question is, whether that is sufficient to 
 shew that the conclusion drawn by the sessions was 
 wrong ; I think not, after the case of Rex v. Little Bol¬ 
 ton ; and even if the case were new, I am not prepared to 
 say that this would give it so much the colour of hn 
 apprenticeship as to prevent the settlement. (i) 
 
 d ' •* - -•* \ . V >•’ 
 
 * ' 9 o . 
 
 (l) Rex v. Burbach, East. 53 Geo. III. Maule and Selvv, M 3 S. 
 
 j 1 4 Tbs 
 
 487 
 
 I 
 
Distinction between imperfect Contracts,, fyc« 
 
 immaterial The age of the party contracting to serve seems ta 
 covenants. ^ ave f orme d no ground of distinction in these cases (i), 
 and it is equally immaterial, whether the master is to 
 find diet, washing, and lodging (2), or the party to find 
 himself (3), without wages (4), or that he is to receive 
 wages (5), or to have a portion of his earnings in lieu 
 thereof (6), or that he is to live away from his master at 
 stated intervals (7). Neither does the time for which 
 the engagement is to last seem to have been relied upon. 
 In all the cases cited, both those which have been deemed 
 contracts of apprenticeship, and those -which been held 
 contracts of hiring, the time for which the agreement 
 was made was less than that prescribed for the binding 
 of apprentices, either under 5 Eliz. chap. 4, or 43 Eliz. 
 chap. 2. 
 
 SECT. III. 
 
 Of discharging the Apprentice from his Indentures. 
 
 Discharging 
 
 apprentices. 
 
 The Court of King’s Bench has no authority to direct 
 that an apprentice shall be discharged from his inden¬ 
 tures (8), but a deed of apprenticeship may he discharged 
 in four ways besides natural efflux of time. 
 
 x B _ 1st, By application of either party to two justices of 
 sions, or two peace, or to the court of quarter sessions. 
 
 justices. r . 
 
 (t) Rex v. Burbach, ante. 487. 
 
 (2) Rex v. Whitechurch, Canoni- 
 corum,&c. ante, 450. (4), 476. (1). 
 
 (3) Rex v. Little Bolton, ante, 
 48a. (1). Rex v. Highnam, ante, 
 480. (1). Rex v. Martham, ante, 
 461. (1). 
 
 (4) Rex v. Shenfield, 4 East, 546. 
 
 J3 
 
 (5) Rex v. All Saints Hereford, 
 ante, 476. (3). Rex. v. Highnam, and 
 the cases ante, n. (3). 
 
 (6) Rex v. Little Bolton, ante, 
 48a. (1). Rex v, Eccleston, ante, 
 
 483. (1) 
 
 (7) Rex -v. Portsea, ante, 463. (1). 
 
 (8) Ex parte Gill, 7 East, 376. 
 
 A more 
 
Of discharging the Apprentice from his Indentures. 
 
 A more extensive power is given to the sessions than to T - Power of 
 the justices, and depends upon 5 Eliz. c. 4. s. 35 ; which 5 Eliz/c. 4. 
 enacts, “ that if any such master shall misuse or evil in- s - 35 - 
 treat his apprentice, or that the said apprentice shall have 
 any just cause to complain, or the apprentice do not his 
 duty to his master, then the said master or apprentice being 
 grieved , and having cause to complain, shall repair unto 
 one justice of peace within the said county, or to the 
 mayor, or other head officer of the city, town corporate, 
 market-town, or other place where the said master dwel- 
 leth, who shall by his wisdom and discretion take such 5 Eiiz - c - 3 - 
 order and direction between the said master and his ap¬ 
 prentice, as the equity of the cause shall require; and if, 
 for want of good conformity in the said master, the said 
 justice of peace, or the said mayor, or other head officer, 
 cannot compound and agree the matter between him and 
 his apprentice, then the said justice, or the said mayor, 
 or other head officer, shall take bond of the said master 
 to appear at the next sessions then to be holden in the said 
 county, or within the said city, town corporate, or mar¬ 
 ket town, to be before the justices of the said county, or 
 the mayor or head officer of the said town-corporate or 
 market-town, if the said master dwell within any such ; 
 and upon his appearance, and hearing of the matter be¬ 
 fore the said justices, or the said mayor, or other head 
 officer, if it be thought meet unto them to discharge the 
 said apprentice of his apprenticehood, that then the said 
 justices, or four of them at the least, whereof one to be 
 of the quorum, or the said mayor or other head officer, 
 with the assent of three other of his brethren, or men of 
 best reputation within the said city, town-corporate or 
 market-town, shall have power by authority hereof, in 
 writing, under their hands and seals, to pronounce and 
 declare, that they have discharged the said apprentice of 
 his apprenticehood, and the cause thereof; and the said 
 writing so being made and enrolled by the clerk of the 
 
499 
 
 ao Geo. II. 
 c. 19. 
 
 Spct.5. 
 
 Of discharging the Apprentice from his Indentures , 
 
 peace or town-clerk, among the records that he keepeth, 
 shall be a sufficient discharge for the said apprentice 
 against his master, his executors and administrators r 
 the indentures of the said apprenticehood, or any law 
 or custom to the contrary notwithstanding. And if the 
 default shall be found to be in the apprentice, then the 
 said justices, or the said mayor or other head officer, 
 with the assistance aforesaid, shall cause such due cor¬ 
 rection and punishment to be ministered unto him, as 
 by their wisdom and discretion shall be thought meet.” ' 
 
 - - .}■ ' . . ” : J r j i : 
 
 » - r • j ; 
 
 The power given to two magistrates over indentures of 
 apprenticeship, is created by 20 Geo. II. c. 19, and con¬ 
 fined to parish apprentices, or others where the premium 
 does not exceed five pounds. 
 
 . 
 
 It enacts, s. 5.—“ That it shall and may be lawful to 
 and for two or more such justices, upon any complaint 
 or application by any apprentice put out by the parish, : 
 or any other apprentice, upon whose binding out no 
 larger sum than five pounds of lawful British money 
 was paid, touching or concerning any misusage, refusal 
 of necessary provision, cruelty, or other ill-treatment of 
 or toward such apprentice, by his or her master or mis-. 
 tress, to summon such master or mistress to appear before 
 such justices at a reasonable time, to be named in such 
 summons; and such justices shall and may examine into 
 the matter of such complaint; and upon proof thereof, 
 made upon oath, to their satisfaction (whether the mas¬ 
 ter or mistress be present or not, if service of the sum¬ 
 mons be also upon oath proved), the said justices may 
 discharge such apprentice, by warrant or certificate under 
 their hands and seals; for which warrant or certificate 
 no fees shall be paid.” 
 
 Sect. 
 
Of discharging the Apprentice from his Indentures . ' 491 
 
 Sect. 4. ii That it shall and may be lawful to and for 
 such justices, upon application or complaint made, upon 
 oath, by any master or mistress, against any such appren¬ 
 tice, touching or concerning any misdemeanor, miscar¬ 
 riage, or ill behaviour, in such his or her service (which 
 oath such justices are hereby empowered to administer), 
 to hear, examine, and determine the same, and to punish 
 the offender by commitment to the house of correction, 
 there to remain and be corrected, and held to hard labour 
 for a reasonable time, not exceeding one calendar month, 
 or otherwise by discharging such apprentice, in manner 
 and form before mentioned.” 
 
 * ' - • " ■ U ' L -Of 'J 
 
 *“ -/ ... 1 , ‘* ' j " - ■ , ' ; . v * • 
 
 A doubt being started upon sect. 4. whether under the 
 words of the act it was not necessary that the complaint 
 should be verified upon the master’s oath, in order to give 
 the magistrate jurisdiction to discharge the apprentice: 
 the court were of opinion that the complaint must be 
 made to the magistrates by the master or mistress, because 
 they alone have an interest in preferring it, and it must 
 be verified upon oath , but it need not be on the oath of 
 the master or mistress, who may know nothing of the 
 fact themselves : the complaint may be well founded upon 
 some causewhich happened in their absence, to be verified 
 by the oath of one who knows the fact, otherwise unless 
 the fault were committed in the master’s presence, he 
 would be without the remedy intended to be given by the 
 legislature. (1) 
 
 j * 4 1 's x ‘ m - . . .... 1 . >.i j 
 
 It has been likewise decided that this act is not repealed 
 by 6 Geo. III. c. 28. sect. 1. which empowers justices, 
 when an apprentice absents himself before his apprentice¬ 
 ship expires, at any time thereafter, whenever he shall 
 be found (so it be within seven years after the expiration 
 of his term), to serve his said master for so long a. term 
 
 (1) Finley, Jowle, 1% East, 248. 
 
 as 
 
492 * Of discharging the Apprentice from his Indentures\ 
 
 as he shall have absconded himself, unless he shall make 
 satisfaction to his master for the loss sustained by his 
 absence (i), the remedy given by this statute to the 
 master for loss of his apprentice’s service being cumula¬ 
 tive. (2) 
 
 Sect. 5. 64 If any person or persons shall think him¬ 
 
 self, herself, or themselves aggrieved by such determi¬ 
 nation, order, or warrant of such justice or justices as 
 aforesaid (save and except any order of commitment), he, 
 she, or they may appeal to the next general quarter ses¬ 
 sions of the peace to be held for the county, riding, li¬ 
 berty, city, town-corporate, or place where such deter¬ 
 mination or order shall be made; which said next ge¬ 
 neral quarter' sessions is hereby empowered to hear, and 
 finally determine the same; and to give and award such 
 costs to any of the respective persons, appellant or re¬ 
 spondent, as the said sessions shall judge reasonable, not 
 exceeding forty shillings; the same to be levied by dis¬ 
 tress and sale in manner before mentioned.” 
 
 Sect. 6, Sect. 6 . “ No writ of certiorari, or other process, 
 
 shall issue, or be issuable, to remove any proceedings 
 whatever, had in pursuance of this act, into any of His 
 Majesty’s courts at Westminster.” (3) 
 
 Sect. 5. 
 
 Appeal to 
 sessions. 
 
 The provisions of this statute seem clear and distinct, 
 
 (i) The justice is to determine 
 what satisfaction shall be made, and if 
 the apprentice shall not give security 
 to make it according to such determi¬ 
 nation, the justice may commit him to 
 the house of correction for any time 
 not exceeding 3 months. An appeal 
 is given to the next sessions, giving 6 
 days notice to the justice and the 
 
 parties, and entering into a recogniz¬ 
 ance 3 days after the notice, with suf¬ 
 ficient surety to try the appeal, &c. 
 
 (2) Gray v. Cookson, 16 East, 13. 
 
 (3) Justices of peace have juris¬ 
 diction over apprentices by other sta¬ 
 tutes, as 6 Geo. III. c. 35., 32. Geo. III. 
 c. 5 7 -> 35 Geo. III. c. 55. for which 
 see the Appendix. 
 
 and 
 
Of discharging the Apprentice from his Indentures . 
 
 and have hitherto given rise to few questions respecting 
 its construction. “ 
 
 The following observations relate to the 5th Eliz. c. 4. 
 But these acts being made in pari materia , it is probable 
 that decisions upon one would be considered as affording 
 an authoritative elucidation of similar doubts arising 
 upon the other. 
 
 - ^ r* 
 
 It was doubted originally, whether the power of dis- 1. Sessions 
 charge given by 5 Eliz. c. 4. was not to be confined to J^Tto^'ii 
 apprentices in trades specifically mentioned in that sta- trades, 
 tute (1). But the law is now settled, that it extends to 
 every description of apprentices. (2) 
 
 The statute requires, that the party grieved shall apply 2. Sessions 
 to one justice of the peace of the county, or to the mayor, ™ aS 
 &c. of the city, &c. where the master dwelleth; and if 
 he cannot compound and agree the matter between him and 
 the apprentice, he is to bind the master to appear at the 
 next sessions, &c. A power is given, therefore, to the 
 justices and sessions having jurisdiction over the place 
 where the master lives, although the apprentice is bound 
 elsewhere. (3) 
 
 The 
 
 (1) Per Lord Hale, Watkins v. 
 
 Edwards, I Vent. 174. 2 Keb. 822. 
 
 Rex v. Gately, 2Salk. 471. 5 Mod. 
 159. resolved accordingly. 1 Bott. 
 572. PI. 780. Rex v. Furness, Cas. 
 Sett, and Rem. 21. S. P. 
 
 (2) Rex v. Colli ngbourne, i Stra. 
 663. Rex v. Taunton, cited, ib. 575. 
 (c). in marg. Hawksworth v. Hilary, 
 t Saund. 315. 
 
 (3) Rex -v. Collingbourne,ante,(z). 
 In this case the apprentice was bound 
 in Londo'ti, to one of the freemen, 
 
 ■ . 6:1 i. 
 
 and the indentures were enrolled there, 
 
 and the master lived in Middlesex at 
 the time of the complaint. The court 
 said, “ they would not take away the 
 “ jurisdiction of the mayor’s court, 
 “ but only give a concurrent jurisdic- 
 “ tion to the justices of the peace for 
 “ the county.” The reporter. Strange, 
 adds, “ the words of the statute are 
 “ very plain, for they give a juris- 
 “ diction to the justices where the 
 “ apprentice lives.” But the report 
 in Lord Raymond, 1410,gives no sup¬ 
 port 
 
494 
 
 3. Must be 
 four county 
 justices, met 
 in general 
 sen, ions. 
 
 4. Sessions 
 have an ori¬ 
 ginal juris¬ 
 diction. 
 
 5. Master’s 
 appearance. 
 
 Of difckarging the Apprentice from his Indentures* 
 
 The power of discharge is confined in counties to fotf? 
 justices at the least, one being of the quorum, and they 
 must be assembled at a general sessions. Where four 
 justices discharged an apprentice at a private sesions, the 
 order was set aside (1). In cities, towns corporate, or 
 market-towns, the power is given to the mayor or head 
 officer, with the consent of his brethren or men of best 
 reputation within the place. 
 
 It has been thought that the legislature intended this 
 power of dissolving the indenture to be exercised rather 
 by way of appeal, after the justice had tried in vain to 
 compound the existing differences, than that the sessions 
 should exercise it in the first instance, upon a direct ap¬ 
 plication (2). But it was afterwards considered that the 
 interference of a private justice was intended only to ar¬ 
 bitrate and accommodate the dispute; and it is now settled 
 that the sessions possess an original jurisdiction indepen¬ 
 dent of any such previous application (3). For the sta¬ 
 tute says, “ if he (the justice) cannot compound the mat¬ 
 ter, he is to take bond for the parties’ appearance at the 
 sessions so that they are not to take it up by appeal. 
 
 The act requires the discharge to be made c< upon the 
 “ master’s appearance.” A master being bound over to 
 the sessions, did not appear, whereupon an order w r as 
 made discharging his apprentice. It Was objected to this 
 order, that, by the terms of the statute, it cannot be made, 
 except upon the master’s appearance. But the court held 
 that the act must have a reasonable construction, so as 
 
 port to the foregoing dictum. By 1 Mod. 287. Holt, C. J. anon, 
 s. 53. cf the act, “the customs of 1 Salk. 67. 
 
 X.ondon and Norwich are saved.” (3) Rex v. Johnson, 1 Salk. €8. 
 
 (1) Anon. Skin. 98. a Salk. 491. Rext\ Gill, 1 Str. 143. 
 
 (2) See the opinion ofTwysden Rex v. Davis, ib. 704. Rex v. Hease- 
 and Rainsford, J. Watkins ■v. Edwards, man, Cat.Temp. Haxdw. 2 Str. 1014, 
 
 <? c i 
 
 not 
 
Qf discharging the Apprentice from, his Indentures . • 495 
 
 Dot to permit the master to take advantage of his own 
 obstinacy. The apprentice’s remedy therefore was not 
 confined to proceedings on the recognizance, forfeited by 
 non-appearance; but the sessions might proceed in the 
 master’s absence, as otherwise, if he ran away, the ap¬ 
 prentice could not be discharged. (1) 
 
 The 'original application was made in this case to a 6. Sum- 
 justice, and the parties being bound over to the sessions, m ° ni ’ 
 must take notice, and appear without further summons (2). 
 
 But where the application is in the first instance to the 
 sessions, the party complained against must be summoned, ' 
 
 and if lie make default, it is equal to an appearance (3). 
 
 And where the master is complained against, the order Torm of th* 
 must set forth either that he appeared, or that he was order ' 
 summoned and made default, or it will be quashed for the 
 defect. Because, although with respect to orders in ge¬ 
 neral, the court will presume omnia rite esse acta ; yet that 
 presumption is only in case of orders which do not in ex¬ 
 press terms require an appearance. But it is otherwise 
 in an act like that of 5 Eliz. c. 4. which gives the jus¬ 
 tices authority to proceed upon the appearance of the 
 party; so that it is made an essential requisite to found 
 their jurisdiction. (4) 
 
 An order of discharge may be made upon the applica- Order of 
 tion of either party; “ for an apprentice may be dis- dl ^ r | e on 
 “ charged from a bad master, and a bad apprentice from plication. 
 
 6t his master (5).” But the sessions cannot discharge 
 without shewing some cause (6), which must be set forth 
 in their order. 
 
 (1) Ditton’s cave, ,2 Salk. 491. Rutter, 1 Bott, 574. PI. 782. Rex 
 
 (a) Ut videtur per Lee, C. J, Rex o'.Gill, 1 Str. 143. 
 
 •v. Amies, iBott, 576. PI. 787. (5) Hawksworth v. Hilary, ante, 
 
 ( 3 ) Per Probyn,J. Rex v. Amies, 493.(3) 
 
 ante, (a) (6) Rex v. Heaseman, ante, (4). 
 
 (4) Rex v. Heaseman, i Bott,577- 3 Str. *013. Rex v. Davis, ib. 704. 
 
 Pi. 788. ante,494. (3). See Regina v. 
 
 I I 
 
 The 
 
49 5 
 
 Ground of 
 complaint. 
 
 Grounds of 
 discharge 
 how stated 
 in order. 
 
 1 
 
 Discharge 
 for ideocy. 
 
 Restitution 
 of fee. 
 
 Of discharging the Apprentice from his Indentures « 
 
 The usual causes for which the apprentice complains 
 against the master are, cruelty and violating his contract, 
 by neglecting to instruct him, or the like; when the 
 master applies to get quit of his apprentice, it is generally 
 upon the ground of incorrigible misbehaviour. 
 
 If an order merely states that the master “ misused his 
 apprentice,” or that the master 66 used him unkindly (i),” 
 or that he refused in court to take him again (2), or 
 that he refused to entertain him according to the inden¬ 
 tures (3), it does not shew a sufficient ground for the 
 discharge. Neither it is enough that the apprentice has 
 married without his master’s consent (4). And there is 
 no power to discharge for sickness, as “ where the ap- 
 « prentice was lame, and, in the surgeon’s opinion, in- 
 “ curably afflicted with the king’s evil,” for the master 
 takes him for better or worse, and is to provide for him 
 in sickness and in health. (5) 
 
 But where a boy who had been put out as a parish ap¬ 
 prentice, after three years’ service, plainly appeared to be 
 an ideot, incapable of learning his trade, the court con¬ 
 firmed an order of sessions, discharging his master of 
 him. For it would be hard upon the master to keep one 
 who could do him no service, while the parish should go 
 free. (6) 
 
 A power of ordering restitution of money given with 
 the apprentice may be exercised, upon discharging him as 
 incident to the jurisdiction. (7) 
 
 (1) Rex v.Heaseman, ante, 495.(4). 
 (a) Rex v. Davis, Str. 774. ante, 
 ( 3 ). 
 
 (3) Rex v. Heaseman,ante, (1). 
 
 (4) Stephensons.Holditch,aVern. 
 
 491. 
 
 (5) Rex v. Hales Owen, 1 Str. Q9. 
 
 This 
 
 s 
 
 A further objection was, that the order 
 was not enrolled, see post. 
 
 (6) Anon. Skin'. 114. See also Rex 
 v. Charles, Burr. S. C. 706. 
 
 (7) Rex v. Johnson, I Salk. 68. 
 a Salk. 491. Ditton’s case, 1 Salk. 
 67. Duhamel’s case, Skir. 108; 
 
 2 Bar. 
 
Of discharging the Apprentice from his Indentures . 
 
 This order must be under the hands and seals of four 
 justices (i), and enrolled as the act directs, or the supe¬ 
 rior court will set it aside. (2) 
 
 No case has occurred in which a pauper’s settlement has 
 depended upon the validity of such an order of discharge. 
 The power of a quarter sessions over it, when trying a 
 question of settlement, is therefore undecided. But it 
 may perhaps be concluded from analogy to the pro¬ 
 ceedings of ecclesiastical (3) revenue (4) and admiralty 
 courts (5), that being a direct judgment upon the fact by 
 a court not only of competent, but exclusive jurisdiction, 
 it is conclusive of the question between contending pa¬ 
 rishes, although they are not immediately parties to the 
 sentence, unless it has been obtained by fraud (6), or ap¬ 
 pears altogether void. (7) 
 
 ’ fCt’ii foi rtf- • -- rrr^j, v . ■; Y-f- . - A--* 
 
 2. Apprenticeship being a personal trust between 
 the master and servant, is determinable by the death 
 
 wqv , 1 ■. .* f i • 5 ,-f w 
 
 1 *• . N \ 
 
 V - i-.rtripf'f . ^ 
 
 2 B.*r. Abrid. master and servant. (5) Lothian v. Henderson, in Dom. 
 
 Rexa>. Amies, ante, 495. (3). In this Proc. 3 Bos. and Pulh 499. Bolton 
 last case it was objected, that it •v. Gladstone, 5 East, 155. 
 did hot appear that the master had (6) Prudham v. Philips, Amb. 
 any money with the apprentice; but 762. Dutchess of Kingston’s case, 
 the order being, “ that W. A. do re- (7) Chichester v. Philips, T. 
 turn and pay back the sum, &c.” it Raym. 405. Havelock v, Rbckwood, 
 shall be intended that he received mo- 8 Term Rep. 268. Case of the Flad. 
 ney -with him. Rex v. Vandeleer, Oyen, ib. 270. n. a. 1. Robin. 
 
 1 -Str. 69. is contra, but the law is now Adm. Rep. 135. But the determitia- 
 settled as stated in the text. tions which hold such judgments con- 
 
 (1) Anon. Salk. 470. Rex v. St, elusive, in the case cf third persons, 
 
 Petrox, Burr. S. C. 248. relate only to admiralty sentences in 
 
 (2) Rex -y. Hales Owen, 1 Str. 99. prize causes, and seem to have been 
 
 ( 3 ) ' Bunting’s case, 4 Co. 29. given with much reluctance. See 
 
 Jones <v. Bow, C.uth, 225. 11 St. Lothian <v. Henderson, 'ante, ('3). 
 
 x rial, a 18. 212. Harvey’s case, 11 And C.J. De Grey’s opinion, Dutchess 
 St. Trial, 285. of Kingston’s case. 11 St. Trial, 261, 
 
 (4) Cook v. Sholl, 5 Term Rep. 262. 
 
 • 2 J 5 - 
 
 » . 
 
 - i 
 
 a: *• • 
 *■ * "tt 
 
 c ’ r 
 
 of 
 
 497 
 
 Order under 
 hand and 
 seal. 
 
 tl 
 
 Order how 
 far conclu¬ 
 sive. 
 
 2 . Dis¬ 
 charge of 
 indentures 
 by death. 
 
 VOL. I. 
 
 K K 
 
49 8 
 
 3. Of mi¬ 
 nors bound 
 beyond the 
 legal period. 
 
 Of discharging the Apprentice from his Indentures . 
 
 of either (1). But indentures are not cancelled by 
 the master’s failure in his business and running 
 away. (2) 
 
 3. Persons who have been bound to serve beyond the 
 age of twenty-one, may elect to vacate their indentures 
 
 (1) Rex v. Peck, Salk. 66. Rex. 
 f v . Eakring, Burr. S. C. 320. Bvit 
 
 or by any other instrument in writing, 
 order and direct that such appren- 
 
 the apprentice and master’s representa- tice shall serve as an apprentice any 
 live may continue the relation at their one of such persons applying, (such 
 option. See several cases, post. So person having lived with and been part 
 may a servant, see Rex v. Ladock, of such master or mistresses family 
 ante, 416. and the executor is liable at the time of their death,) as the jus- 
 upon the testator’s covenants, if he tices shall think fit, during the residue 
 have assets. Rex v. Peck, ante. But of the term mentioned in the inden- 
 32 G. 3. c.57. for the regulation of ture. By sect. 4. If no application 
 parish apprentices, recites, that on the shall be made within three months, or 
 death of the master during the term the justices shall not think fit that the 
 of such apprenticeship, the agreement apprenticeship shall continue, the in¬ 
 fer service on the part of the appren- dentures shall be at an end in like man- 
 tice is at an end ; but the covenant on ner, as they would have been at the 
 the part of the master still continues expiration of the time therein men- 
 as far as his assets extend, or doubts tioned. Sect. 5. Provides “ that no- 
 have arisen in respect thereto, &c. thing herein before contained shall 
 It then enacts, (sect. 2.) that such co- extend or be construed to extend to 
 venant for maintenance of parish ap- any parish apprentice,but to such only 
 prentices with whom no more than 5I. as shall be living with, and shall make 
 shall be given, shall not continue in part of the family, or shall be in the 
 force longer than for three calendar actual employment of such original 
 months after the death of the master, master or mistress, or of any subse- 
 &c. during which three months the ap- quent master or mistress appointed 
 prentice shall continue to serve the under and by virtue of the several pro- 
 executors or their appointee, and that visions of this act, at the time of the 
 within such three calendar months, death of any such masters or mistresses 
 two justices of the county, &c. where respectively. Upon the construction 
 the master or mistress shall have died, of this clause, see Rex v. Sheeps* 
 shall and may, on application by the head, 15 East, 59. post, 
 widow of the master, or husband of (2) Rex v. Buckington, 2 Lord 
 the mistress, or by any son, daughter, Raym. 1352. 1 Str. 582. And the 
 brother or sister, executor or execu- case of a parish apprentice, Rex v. 
 trix, administrator or administratrix Langham, Cald. 126. Rex v. Eakring, 
 of such master or mistress, by indorse- Burr. S. C. 320. Rex v. Chester* 
 
 ment on the indenture or counterpart, ibid. 782. 
 
 upon 
 
 
Of discharging the Apprentice from his Indentures . 499 
 
 upon attaining that age, unless bound to serve beyond it 
 under the authority of an act of parliament (1). But the 
 apprentice must regularly declare his intention to do so. 
 
 For where an infant was bound for six years by inden¬ 
 ture, and being of age ran away, alledging he did so with 
 an intent to avoid the apprenticeship, made when he was 
 an infant, and to his prejudice, the court inclined strongly 
 to think that this running away did not avoid them, and 
 that he could not make use of his offence to avoid the 
 punishment that attends it, for it is too late to do it be¬ 
 fore a justice when charged with a crime (2), and it has 
 been subsequently decided upon the authority of the fore¬ 
 going case, that voidable indentures are not avoided by 
 the apprentice’s act of delinquency in running away from 
 his master. (3) 
 
 4. The most usual mode of discharging indentures is 4. By con- 
 by mutual consent. If the apprentice is an infant, his 3snt * 
 master cannot discharge them by his consent alone (4). 
 
 But it may be done with his father’s (5), or any person Minors, 
 having the legal superintendance of his minority. 
 
 In the case of a parish apprentice under age, the in- Parish ap - 
 denture cannot be discharged by his consent (6), though prenuces ' 
 
 (1) Ex parte Mary Anne Davis, 6 was held to be terminated by the death. 
 
 Term Rep. 715. The opinion of so as to entitle the pauper to a settle- 
 Aston, J. Rex v. Evered, Cald. 26. ment by hiring and service. See ex 
 See also ex parte Gill, 7 East, 376. parte Gill, 7 East, 376. 
 
 (a) Rex v. Evered, Cald.26. S. C. (3) Gray v. Cookson, 16 East, 13. 
 
 16 East, 27. Eut in this case the ap- (4) Rex v. Austrey, Burr. S. C . 
 
 prentice was discharged by consent, 441. Even to enter into the king’s 
 there being another objection to the service. See Rex v. Hindringhain, 6 
 commitment. Ashcrofts. Bertles, 6 Term Rep.557. 
 
 Term Rep. 652. See also Rex (5) Rex 1/. St. Mary Kallendar, 
 
 Euckington, ante, 498. (2). But in Burr. S. C. 274. Rex <v. Wedding- 
 
 Rex a/. Eakring, ante, 498. (1), the ton, Burr. S. C. 766. Rex v. Spawn- 
 apprentice ran away, and the master ton, Burr. S. C. 801. 
 dying afterwards, the apprenticeship ( 5 ) Rex v. Austrey, ante, n. (4). 
 
 KK2 his 
 

 5 ° o Of discharging the Apprentice from his Indentures. 
 
 his father concur (i). As he is bound out by the parish 
 officers under a special authority, they ought to be con¬ 
 sulted, and give their assent to his discharge, otherwise 
 the whole policy of the 43 Eliz. might be defeated (2). 
 But such assent is unnecessary after he attains the age of 
 twenty-one; at which time the master and apprentice 
 may cancel the indentures by mutual agreement (3). Yet 
 if an attempt be made to cancel them before that time, 
 it is not rendered valid merely by the apprentice’s coming 
 of age, but the indentures continue in force, unless the 
 parties enter into a new agreement. (4) 
 
 How dis- In order to discharge indentures, it is necessary, not 
 charged, only that the parties should agree to separate, but that 
 the indentures should be actually cancelled (5), or given 
 up (6); or at least, something done which the law con¬ 
 siders as equivalent. 
 
 By whom. It seems as if they must be cancelled by the original mas¬ 
 ter, and that it cannot be done by a third person, whom 
 the apprentice is serving with the consent of the first. (7) 
 
 in what Where the parties have power to consent, the inden- 
 
 manner. tures ma y be discharged. 1 st, By formally cancelling 
 
 (1) Rex v. Langham, Cald.126. 
 
 (2) Per Lord Mansfield, C. J. Rex 
 v. Weddington, supra, 499. n. (5), de¬ 
 cided in Rex *v. Langham, supra, 498. 
 n. (4). 
 
 (3) Rex v. Harberton, 1 Term 
 Rep. 139. Rex v. Ecclesal Bierlow, 
 Burr. S. C. 562. 
 
 (4) Rex v. Austrey, Burr. S. C. 
 441. 
 
 (5) As by drawing a pen through 
 them. Rex v. Langham, Cald. 126. 
 Tearing of the names and seals. Rex 
 •v. Spawnton, Burr. S. C. ubi. 
 
 f 61 Rex v, Holy Trinity in the 
 
 Minories, post. 511. (3)- See also post, 
 n. ( 7 ), 5 °i. (a). 
 
 (7) Rex v. Notton, Burr. S. C. 
 629. Qusere tamen, whether the de¬ 
 cision imparts so much. For the pau¬ 
 per was a parish apprentice bound un¬ 
 til 24 years of age, and the service 
 under which the settlement was ob¬ 
 tained, being after the appointee had 
 given up the indentures and long after 
 the pauper had attained ai; the court 
 was of opinion that it was not a ser¬ 
 vice under the indentures. And see 
 Rex •v. Clapham, Burr. S. C. 266 
 Rex -v. Shebbear, 1 East, 73. 
 
 15 them. 
 
Of discharging the Apprentice from his Indentures . coi 
 
 W 
 
 them. 2d, By exchange, or mutually delivering them 
 up, and this, either with an indorsement (i), or without; 
 
 “ because the exchange of the indentures amounts, either 
 46 in law or in equity, (and they are the same thing in the 
 “ case,) to a cancelling of them, and a ^determination of 
 44 the apprenticeship under them.” (2) 
 
 Lord Mansfield was of opinion, that it would have 
 been more convenient, if the court had never gone fur¬ 
 ther than to inquire whether the indentures have been 
 actually cancelled, or given up. (3) 
 
 3d, But apprentices have been held discharged in 
 many instances, although the master has retained the 
 indentures in his custody, and they have existed unde¬ 
 faced. 
 
 Lord Mansfield has laid down the following general Rule for 
 rule, as a clear line to go by in ascertaining whether the 
 indentures are discharged. 44 Wherever the indenture discharge. 
 
 44 is so far made an end of, as to give the apprentice a 
 44 remedy at law, it shall be considered as a dissolution ( 
 
 44 of the apprenticeship; but if it were extended to every 
 44 case where a court of equity would relieve, the inquiry 
 44 would b^ endless; and different magistrates, not bred 
 44 to the profession, would, when left to decide secundum 
 44 discretionem , breed endless confusion, by frequently, 
 
 44 in the like cases, making very contrary determina- 
 44 tions.” (4) 
 
 Thus, where an apprentice lived with his master till 
 twenty-one, and then made an agreement to give him 
 
 (1) St. Petrox v. Stoke Fleming, (3) Rex v. Hnrberton, 1 Term 
 Burr. S.C. 250. Rep. 139. S. C.; and the court seems 
 
 (a) Per Lee, C. J. Rex 1/. St. to have held that opinion, Rex v. 
 
 Mary Kallendar, Burr. S. C. Z74. Thursley, 6 Mod. 190. 
 
 Rex v, Litchfield, Burr.S. C. 511. (4) Rex v. Harberton, ante, (3). 
 
 K K 3 
 
 one 
 
502 
 
 Conditional 
 agreement 
 to cancel, 
 insufficient, 
 
 Of discharging the Apprentice from his Indentures , 
 
 one guinea to discharge him from his apprenticeship; 
 the master gave him a discharge accordingly, and the 
 pauper hired himself elsewhere. Lord Mansfield, C. J. 
 
 “ I am of opinion, that if the indenture had not been de- 
 « strayed , but had remained in the master's hands , the 
 “ apprentice would have gained a settlement by a sub- 
 « sequent hiring and service. The master received a 
 « guinea for his apprentice, then at full age, for the 
 46 express purpose of vacating the indenture. Why ! 
 “ could the master, after this, have used the indenture 
 44 against the apprentice? So far from it, the appren- 
 44 tice might have brought an action against the master 
 44 for it.” (i) 
 
 The father of an apprentice, at his son’s request, and 
 with his consent, bought out his time for four guineas, 
 the master giving a receipt, and offering to give up the 
 indentures, which the father did not then take, not 
 thinking it material; the master kept the indenture in 
 custody, uncancelled, until the expiration of the whole 
 time, when he delivered it up. The court were of opi¬ 
 nion, that the indentures had been put an end to by the 
 agreement. (2) 
 
 But unless the indentures are actually cancelled, or 
 given up, or the master agree unconditionally to do so 
 for a valuable consideration, they must be considered as 
 continuing to subsist. 
 
 If the master agrees to cancel them conditionally, 
 they remain in force until the apprentice performs the 
 condition, although he is treated in the interim, as one 
 sui juris, uncontroled by the obligation of his inden¬ 
 tures. 
 
 (?) Rex v. Justices of Devonshire, ley, 6 Mod. 190. But no considera- 
 Cald. 3a. Yet see Regina v. Thurs- tion given to the master; 
 
 (a) Rex v.Harberton, ante,501.(3). 
 
 A pauper 
 
Of discharging the Apprentice from his Indentures. 
 
 A pauper served two years and a half under his in¬ 
 dentures to a blacksmith, when his master leaving off 
 business, they agreed verbally, that the pauper should 
 give his master seven pounds for the remainder of his 
 time, the master not wishing to turn him over to any 
 body. The master to keep the indentures till the seven 
 pounds were paid, which was to be discharged from time 
 to time as the pauper could earn and make it convenient 
 to pay it. The pauper afterwards worked with different 
 masters until harvest time, when he served his original 
 master for a month, at his request, receiving harvest 
 wages from him as a labourer, which were deducted 
 from the seven pounds he had agreed to pay his master. 
 The master afterwards recommended the pauper to serve 
 one Cherry a blacksmith, in whose service he continued 
 with his master’s knowledge, about twelve months. 
 The court were of opinion, “ that the parties did not 
 put an end to the apprenticeship; but on the contrary, 
 the apprentice agreed to pay seven pounds to the master, 
 who was to keep the indentures until that sum was paid, 
 the master all this time keeping a control over the ap¬ 
 prentice.” The indentures therefore continued in force 
 when he went to serve Cherry, at his master’s request, 
 by serving whom, he gained a settlement, not as an 
 hired servant, but by serving him under the inden¬ 
 tures of apprenticeship, with the consent of his original 
 master. (i) 
 
 So, where an apprentice who has assigned to S. pro¬ 
 posed to S. two months before the expiration of his ap¬ 
 prenticeship, to let him off the remainder of his time, 
 which he at first refused to do. The pauper then offered 
 to give S. a guinea, if he would let him offJ which S. 
 agreed to do, and also to give him a new suit of clothes 
 
 (i) Rex v. Chipping Warden, 8 Term Rep. ic8. 
 
 k k 4 - when 
 
 503 
 
 Master re¬ 
 taining in¬ 
 dentures till 
 7I. paid. 
 
 Agreement 
 to let ap¬ 
 prentice off 
 for a guinea 
 and it is not 
 paid. 
 
Of discharging the Apprentice from his Indentures. 
 
 when the guinea was paid. The guinea was not paid, 
 nor did S. give the pauper the clothes, nor were the in¬ 
 dentures given up or cancelled. The indentures were 
 held to subsist, and that the pauper gained a settlement 
 by subsequent service, with a particular master, to whom 
 S. had given a specific consent, (i) 
 
 Lastly, a minor was bound for six years, and the in¬ 
 denture voidable, and the master made the following 
 unstamped indorsement on the indenture, signed but 
 not sealed by him: “ I agree to cancel this indenture 
 as against I. G. and W.G. his son [the apprentice and 
 plaintiff], provided the said W.G. makes no engage¬ 
 ment, or enters into any person’s service in the town of 
 Newcastle upon Tyne: in such case this indenture to 
 remain valid, and the present engagement void.” W. G. 
 afterwards, within the term, made an engagement in 
 the town of N. by setting up the trade of a woollen- 
 draper for himself. The court were of opinion, that 
 the stipulation against making an engagement, as cou¬ 
 pled with the context of entering into any person’s 
 service in the town of N., in plain sense imported an 
 engagement of trade or business, and seemed equivalent 
 to a stipulation, that he should neither engage in any 
 business himself, nor be employed in any as servant 
 to another within the town of N.; and consequently 
 that the indenture was unavoided, and the apprentice 
 liable to punishment, under 20 Geo. II. c. 19. s. 4., for 
 absenting himself after such engagement, and before the 
 term in his indentures had expired. (2) 
 
 I Kl l I 4 .4 . • M,\ — I 
 
 It is manifest from these cases, that a mere agreement, 
 without valuable consideration, to discharge the appren¬ 
 tice from the obligation of serving his master, does not 
 put an end to the indentures. 
 
 (1) Rex v. Shcbbear, 1 East, 73. (a) Gray v. Cooteon, 16 East, 13. 
 
 v An 
 
 What shall 
 not amount 
 to a can¬ 
 celling of 
 the inden¬ 
 tures. 
 
Of discharging the Apprentice from his Indentures . 505 
 
 t 
 
 An apprentice under age met with a press-gang, and 
 entered a volunteer in His Majesty’s service with his 
 master’s consent. He never returned to his master, 
 but the indentures were not delivered up, nor cancelled. 
 
 The consent thus given by the master evidently im¬ 
 plied that he did not put an end to the indentures, 
 and they continued in force until the expiration of the 
 term. (1) 
 
 H. was bound by the parish of Knowstone to J. F. Service with 
 for an estate which he rented in that parish of J.L., who vensmtsVfT 
 covenanted with F. “ that if a second apprentice was indemnify 
 
 . . . tt 1 -j the first 
 
 bound to him for that estate (which H. was), he the master. 
 
 said J. L. and his representatives, would discharge the 
 said J. F. from any expences he might incur thereby.” 
 
 Upon H. being so bound, F. applied to Mrs. L. the 
 widow and representative, of J. L., who took the pauper 
 H., received the parish money with him, and went with 
 v him into the parish of Roseash, where he resided with 
 her for three years, when, becoming a cripple, she sent 
 him back to F. and insisted 011 his receiving the pauper. 
 
 This F. refused to do, until she promised to pay him all 
 the expences he should be at in taking care of him, and 
 then he put the pauper to live with the pauper’s grand¬ 
 mother. The court (2) were of opinion, that the ori- * 
 ginal indenture continued, and was not discharged by any 
 thing stated to have passed between F. and Mrs. L.(3) 
 
 (1) Rex v. Hindringham, 6 Term 
 Rep. 557. Indeed all the cases in the 
 next section proceed upon this prin¬ 
 ciple. 
 
 (a) Lord Mansfield, absent. 
 
 (3) Rex v. Charles, Burr. S. C. 
 706. In this latter report, the words 
 given to Aston J. are, “ F. having 
 “ another apprentice, applies to Mrs. 
 
 “ L. to take him, agreeable to her 
 “ covenant; she takes him with his 
 <( consent, and takes the parish money, 
 “ which, to be sure, looks like an as- 
 “ signment, but is not one.” It is to 
 be observed further, that the appren¬ 
 tice, being under age, could not have 
 consented to the discharge in either of 
 the foregoing cases. 
 
4 
 
 Of the Service 
 
 506 
 
 I 
 
 Of the ser¬ 
 vice. 
 
 / 
 
 / 
 
 I 
 
 Extent of 
 service. 
 
 ir 
 
 SECT. IV. 
 
 I ' " 
 
 Of the Service. 
 
 The service of an apprentice is required by a different 
 statute, and governed by different rules from those 
 which regulate that of an hired servant. 
 
 It has been observed, that “ the performance of actual 
 service is not the thing material: it is the residence, the 
 inhabitancy of an apprentice in a town or parish for forty 
 days, that gains the settlement (1).” But although the 
 extent of the service may be immaterial, the apprentice 
 gains no settlement, unless he continues under the con- 
 troul of his indentures during such residence, liable, not 
 only in law, but in fact, to perform the duties prescribed 
 by his covenants; otherwise, he does not inhabit as an 
 apprentice. This is what seems meant by the term ser¬ 
 vice , as applied to apprentices. 
 
 / 
 
 The extent and quality of this service is limited by the 
 covenants of the deed by which he is bound, and it seems 
 immaterial, whether they allow an interruption of ser¬ 
 vice, or exempt the apprentice from his master’s controul 
 at stated period. This has not been expressly decided, 
 but the following case, which might have raised the ques¬ 
 tion, was brought before the court:—A father covenanted 
 to find the apprentice meat, drink, and lodging, on every 
 Sunday in the year during the term; and the boy went 
 home every Sunday, and served his master the remaining 
 six days of the week. This point was not stirred, but 
 the apprentice acquired a settlement. (2) 
 
 Service 
 
 (1) Per Aston, J. Rex v. Charles, (a) Rex v. Leighton, 4 Ternr 
 Burr. S. C. 708. Rep. 732. ante, 466. (2). This case 
 
 may 
 
under the Indentures, 
 
 5 07 
 
 Service under indentures may be either, 1. with the Service, 
 original master; 2. with another person by his consent. 
 
 It has been observed, by a very learned judge, “ that 
 it would perhaps have been better to have confined the 
 power of gaining a settlement to service with the original 
 master (1),” but the law is settled otherwise. 
 
 Consent may be given, not only by the original master, Consent fcy 
 but by his executor (2), or even by his widow, before whom s ‘ ven * 
 taking out administration. (3) 
 
 Also the person receiving an apprentice with such con¬ 
 sent, may transfer his service to another; for his consent 
 includes that of the original master, and this without the 
 actual knowledge or consent of the first (4), or of his 
 representatives, if he be dead. (5) 
 
 But since 32 Geo. III. c. 57. it has been held, that when 
 a parish apprentice served the son of his original mistress 
 to whom she had given up her farm, and continued with 
 him until her death: he could not gain a settlement in 
 another parish by serving another person with the son’s 
 consent given after his mother’s decease. For that act 
 
 may perhaps be rather considered as 
 one ofinterruptian in the service, than 
 of an exception in the contract. As 
 to exceptions in contracts of hiring, 
 see ante, 336. et seq.; and as to inter¬ 
 ruptions in service under them, ante, 
 3 \2. et seq. But the words of 3 W. III. 
 c. II. sect. 6. are, that the servant 
 “ shall be hired for a year,” and of 
 8&9W. III. c. 30. that “he shall 
 “ continue and abide in the same ser- 
 “ vice for one whole year.” There 
 are none such in the statutes which 
 respect settlements of apprenticeship. 
 
 (1) Her Lord Kenyon, C, J. Rex 
 t v. Crediton, 1 East, 62. 
 
 (2) Rex v. St. Paul’s Bedford, 
 6 Term Rep. 452. 
 
 (3) If the apprentice also consent. 
 Rex v. East Bridgeford, Burr. S. C. 
 133. But see Rex v. Chirk, post. 
 
 512* 0 ). 
 
 (4) Rex v. Tavistock, Burr. S. C. 
 578. Rex <v. East Bridgeford, ante, 
 (3). Rex v. Bradstone, a Bott. 434. 
 PI. 459. 
 
 (5) Rex v. Clapham, Burr. S. C. 
 266. Per Lord Ellenborough, C. J. 
 Rex v. Sheepshead, 15 East, 59. 
 
 recites 
 
508 
 
 " What con¬ 
 sent suffi¬ 
 cient. 
 
 Rules for 
 consent to 
 serve third 
 person. 
 
 Of the Service 
 
 recites that the contract of service is at an end upon the 
 mistresses death, and service by which a settlement is to 
 be acquired according to sect. 5. means service with a 
 a subsequent master or mistress who becomes so by the 
 provisions of the act; it is the service under the autho¬ 
 rized substitution that the act applies to. (1) 
 
 This power of assent is an independent right, vested 
 in the person whom the apprentice is legally serving; 
 which he may exercise without any other concurrence 
 than that of the apprentice, and which the latter may 
 give, although under age (2), or bound out by the pa¬ 
 rish (3). But which, if once given, the master cannot 
 afterwards recal. (4) 
 
 It is not every consent to service with a third person 
 which enables an apprentice to acquire a settlement. The 
 distinction is laid down in a recent case: “ If the master 
 c£ is applied to for his consent to a particular service, and 
 “ give it, that shall be considered as a service with the 
 ci first master, and confers a settlement, but an indiscri- 
 “ ruinate leave to serve any person will not.” (5) 
 
 To gain a settlement therefore by service with a third 
 person. 1st, The consent must be direct and explicit. 
 2d, To serve a particular person; or 3d, if more general, 
 it must be for the immediate benefit of the master." 4th, 
 
 (1) Rex v. Sheepshead, 15 East, 59. 
 See the provisions of this act abridged, 
 ante, 498. (i), and the act at large in 
 the appendix. 
 
 (2) Rex v. Fremington, Burr. S.C. 
 416. Rex v. Bradninch, 2 Bott, 430. 
 PI. 456. and indeed almost all the cases 
 of consent. 
 
 (3) Rex v. Tavistock, post. 443. (1). 
 Rex v. St. George’s Hanover Square, 
 post.510. (4). Rex'v. Lar.gham, ante, 
 5co. (1). 
 
 (4; Per Holt, C. J. Barber v. Den¬ 
 nis, 6 Mod. 69. But this seems to ex¬ 
 tend only to cases where the licence is 
 express, and it may be otherwise li¬ 
 mited by the master. See the opinion 
 of Buller J. Rex v. Holy Trinity in 
 the Minories, post, 511. (3). Gray v. 
 Cookson, ante,500. (2). 
 
 (5) Per Lord Kenyon, Rex v. Sheb- 
 bear, 1 East, 75. 
 
 It 
 
 
t 
 
 under the Indentures . 
 
 It must be given by tbe master under a conviction, that 
 the indentures are still in force. 
 
 i ‘ *i 
 
 5 °y 
 
 An explicit consent may be given, 
 in writing. 2d, By parol. 
 
 1 st, By assignment 1. Explicit 
 
 consent how 
 
 given. 
 
 An assignment, however formal, is good by way of I, 2 3 4 5 . Writren 
 
 » # J J assignment. 
 
 covenant, but not as an assignment to pass the master’s 
 interest, without a local custom to support it (1), and the 
 defect is not cured by the apprentice’s consent (2), be¬ 
 cause the person of a man is not strictly and legally as¬ 
 signable (3). But it is sufficient to legalize the service Written as. 
 under it, and thereby confer a settlement (4), although 
 the original indenture is voidable (5). This assignment, 
 when in writing, must be stamped, for it is not within 
 the exception 20 Geo. III. c. 58. s. 4. which exempts 
 <£ any memorandum or agreement for the hire of any la- 
 “ bourer, artificer, manufacturer, or menial servant.” (6) 
 
 2d, An unwritten consent to the service is equally 2. Parol, 
 good (7), and may be either express or implied; tmcl it 
 seems good when the master agrees that his apprentice 
 shall work for another for a certain sum to be paid the 
 
 (1) Dalt. 658. Caistor <v. Eccle?, 
 I Salk. 681. Baxter v. Burfield. 
 Herns <v. Drake, 8 Ann. cited Ld. 
 Raym. 683. lb. by Lee, C. J. But 
 see the opinion of Buller, J. Master 
 v. Miller, 4 Term Rep. 341. who cites 
 Rex v. Aides, 12 Mod. 354. 
 
 (2) Rex v. Channel, 3 Kfcb.519. 
 
 (3) Rex v. East Bridgeford, Burr. 
 S.C. 133. 
 
 (4) Caistor v. Eccles, 1 Ld. Raym. 
 683. Holy Trinity v. Shoreditch, 
 I Str. 10. Rex v . Petharn, Burr. S.C. 
 
 154 . 
 
 (5) St. Petrox v. Stoke Fleming, 
 
 Burr. S. C. 248. Where a female was 
 bound out by the parish, and the defect 
 in the original indentures was, that the 
 girl had been bound absolutely till 
 twenty one, without the alternative 
 “ or time of her marriage,” see ante. 
 
 (6) Rex v. St. Paul’s Bedford, ante, 
 507.(2). See also 44Geo. III. c. 98. 
 ante. 459. 
 
 (7) St. Olaves v. All Hallows, 8 
 Mod. 164. Str. 334. Rex v. Sr. 
 George’s Hanover Square, Burr. S.C. 
 12 .. Rex v. Stockland, Cald. 60. 
 Dough 70., and other cases, post. 
 
 I 
 
 master 
 

 5*o 
 
 Express 
 
 consent. 
 
 Implied 
 
 consent. 
 
 Of the Service 
 
 master without consulting the apprentice, at least if the 
 apprentice lives and works with such person in pursuance 
 thereof, (i) 
 
 ist, A master told his apprentice, “ that he had no 
 “ business for her, and that she should go where she 
 C£ would;” afterwards, meeting Mr. N. a relation, who 
 wanted a maid servant, he told him, ££ he w r as over- 
 44 stocked with maids, and had an apprentice maid, which 
 ££ he could spare him, if N. and she could agree about 
 C£ terms.” He afterwards told the apprentice, that she 
 might go to Mr. N. and live with Mr. N. if they could 
 agree, and she did so (2). A person willing to take into 
 his service one ■who w r as an apprentice at the time, went 
 to the master, who had failed in circumstances, to ask 
 him whether he was willing to resign up his apprentice; 
 and further said, ££ if things come about again, he hoped 
 <£ he would never fetch her (the apprentice) again;” to 
 which the master replied, ££ he never would (3).” These 
 are express consents. 
 
 2d, A direct consent may be inferred, where the words 
 used do not appear. A master hired out his apprentice 
 to a third person by parol agreement, receiving her 
 wages, and finding her in clothes (4). The assignee of 
 an apprentice placed him out with a third person as an 
 apprentice (5). An apprentice having staid out all night, 
 was told she might go look for another place, and a week 
 afterwards she agreed to hire herself as a servant, when 
 her first master gave her a character (6). These amount 
 to sufficient consents to the particular service. 
 
 (1) Rex-y. Smerden, 13 East, 452. 
 
 (2) Rex v. Fremington, Burr. S. C. 
 416. ante, 508. (2). 
 
 (3) Rex < v. Langham, Cald. 126. 
 ante, 498. (2). 
 
 (4) Rex *v. St. George’s Hanover 
 
 14 
 
 Square, Burr. S. C. 12. But see Reg. 
 v. Thursley, 1 Bott, 523. PI. 705. 
 
 (5) Rex -y.Clapham, Burr. S.C. a66. 
 ante, 507. (5). 
 
 (6) Rex <v. St. Mar) r Lambeth, 2 
 Bott, 431. PI. 457. 
 
 But 
 
 
 I 
 
I 
 
 under the Indentures. 
 
 But mere knowledge by the original master, that his 
 apprentice is living in service with another person, does 
 not (i). The pauper was bound as a parish apprentice 
 to Matthews: he assigned her by parol to Stilliford. 
 Having lived with him seven months, she ran away, and 
 served one Hayes for nine months, with the knowledge, 
 but without any express consent of Matthews or Stilli¬ 
 ford. Hayes did not know she was an apprentice. Mat¬ 
 thews, the original master, resided in the same parish 
 where the pauper served Hayes, and frequently saw her 
 there, but during her residence there, applied to Stilli¬ 
 ford to take her back, and threatened to put him to 
 trouble if he did not. Lord Mansfield:—Here is no con¬ 
 sent express, or implied; his mere knowledge of it does 
 not imply his consent to it (2). Per Buller J.—All the 
 cases shew, that mere knowledge is not sufficient; know¬ 
 ledge does not imply consent. (3) 
 
 General consent is rather to be considered as a renun¬ 
 ciation and abandonment of the apprentice’s service, ex¬ 
 pressed under the form of an indiscriminate leave, which 
 sets the apprentice at liberty to work with other masters, 
 than as a direct assent to service with other persons. But 
 a master may give his servant a licence to work indiscrimi¬ 
 nately, without limiting him to a particular individual, and 
 yet it shall not come within the meaning of such a gene¬ 
 ral consent as precludes a settlement. For such service 
 may be qua actual service to the master himself, if it be 
 for his benefit, and he retains a direct controul over the 
 apprentice. (4) 
 
 (1) Per Lee, C. J. Rex v. St. Mary 
 Kail end ar, Bu*r. S. C. 274- Per Bai¬ 
 ler, J. Rex v. Holy Trinity in the 
 Minories, post. 514. (1). 
 
 (a) Rex v. Ideford, Burr. S. C. 821. 
 (3) Rex v. Holy Trinity in the 
 Minories, post. J14. (1); and sec the 
 opinion of Buller, J. Rex v. Standford 
 r Term Rep. a8i. post,; as also 
 
 Rex v. St. Mary Lambeth, % Bott, 
 431. PI. 457. The facts in both these 
 cases would have raised the question, 
 but it passed unnoticed, both at the 
 bar, and upon the bench. See also the 
 opinion of Lord Kenyon, C. J. Rex 
 <i/. Shebbeare, ante, 505. (1). 
 
 (4) Rex v. Offerton, post. 
 
 5 11 
 
 1 
 
 Knowledge 
 of service 
 insufficient. 
 
 General 
 
 consent. 
 
 But 
 
512 
 
 Consents 
 which give 
 no settle- 
 mem. 
 
 General dis¬ 
 charge. , 
 
 Of the Service 
 
 But where the master tells his apprentice 44 to go about 
 44 his business, and work for himself (i), that he must 
 44 not stay; he was at liberty to go where he thought 
 44 proper (2).” Or that lie had no employment for him; 
 he might go where he pleased (3), or an agreement, that 
 the apprentice shall work and provide for himself (4). 
 These are general consents, under which, service with a 
 third person confers no settlement. For the service can¬ 
 not be considered as performed with the first master, he 
 having expressly renounced it, and the conversations do 
 not amount to a discharge of the indentures, so as to 
 enable the apprentice to make a new contract of service 
 with another person. 
 
 Thus, where the master of a parish apprentice, with¬ 
 out the parish officer’s consent, agreed, in consideration 
 of forty shillings, paid by the apprentice, who was then 
 a minor, to discharge him from his apprenticeship, and 
 delivered up his indentures, and the apprentice afterwards 
 hired himself to several masters. It was held, that the 
 indentures continued; for the pauper being under age, 
 was incapable of consenting to the discharge; and the 
 subsequent service under the hirings can never be consi¬ 
 dered as performed with the master’s consent, and so, as 
 being a service under the indentures; for it w r as no express 
 consent given to the particular service, but was intended 
 to be quite general, and even founded on a mistaken ap¬ 
 prehension, that the pauper could consent to his being 
 discharged. (5) 
 
 So wffiere a master told his apprentice 44 to go about 
 his business, and work for himselfi” and the indentures 
 
 (1) St.Luke’s^.St.Leonard’?,post. (4) Rex nj. St. Helen, Stonegate, 
 
 513. (1). 1 East, 285. 
 
 (2) Rex v. Chirk, Burr. S. C. 782. (5) Rex v. Austrey, Burr. S.C. 
 
 Re* •v. Eakring, Burr. S.C. 320. 441. ante, 499. (4). 
 
 (3) Rex v. Crediton, post. Notton v. 
 
 Roystcn, ante, 3C0. (7). 
 
 were 
 
under the Indentures . 
 
 were not cancelled or given up. The pauper hired him- 
 self with several masters as a journeyman, and applied 
 his earnings to his own use. His original master, not 
 knowing with whom he w'orked after he left him, nor 
 demanding any account of his earnings, nor making any 
 inquiry after him, or any provision for him. It was held, 
 that he gained no settlement by service as an apprentice, 
 by this general leave; nor as an hired servant, for the 
 indentures subsisting, he was not sui juris. (i) 
 
 Likewise, where the master of an apprentice died, and 
 he continued with the widow in W. for a fortnight to 
 finish his w r ork. Having no employment afterwards for 
 him, or any other workman, she told him that he must 
 not stay with her, and he was at liberty to go where he 
 thought proper. He quitted her, and, on parting, told 
 her he was going to his father, who was a slater, and 
 lived in another parish. But no agreement took place 
 between the father and her, to his knowledge, nor were 
 the indentures delivered up. He lived with his father for 
 two or three years. It was held that he was settled 
 in W. He gained no settlement by residing with his 
 father. 66 The widow does not appear to have had any 
 “ interest: no administration appears to have been taken 
 u out.” (2) 
 
 H3 
 
 A particular consent is most naturally given before the Consent to 
 commencement of the new service (3), and previous to a s e a ™™ lar 
 general licence or consent. It has never been expressly 
 decided, whether a consent, subsequent to the commence- 
 
 (1) St. Luke’s •v. St. Leonard’s, ter answered, “ he might go where he 
 Burr. S. C. 542. See also Notton v. pleased.” 
 
 Royston, Burr. S. C. 629. ante, 500. (2) Rex v . Chirk, Burr. S. C. 782. 
 
 (6). In this case, the apprentice be- also Rex v. Eakring, Burr. S. C. 320. 
 ing desirous to leave the master whom Rex v. East Bridgeford, ante, 307. (3). 
 he served, with leave from his original (3) See the cases, ante, p. 509. et 
 mistress, applied to him, and the mas- seq. 
 
 VOL. I. L L 
 
 ment 
 
5*4 
 
 After gene 
 ral licence. 
 
 Assent given 
 by “ you are 
 “ welcome 
 “ to keep 
 “ my ap- 
 prentice, 
 
 “ &c.” 
 
 “ You may 
 “ go to B. 
 
 •* with all 
 
 Of the Service 
 
 ment of a service, under these circumstances, would 
 render it sufficient, according to the maxim, Qjuod omnis 
 ratihabitio retrotrahitur atque mandato cequi paratur . 
 
 i 
 
 But it may be given after a general licence of depar¬ 
 ture, and after the apprentice has commenced service 
 under such a licence; for the indentures continuing to 
 subsist, the master has a right to resume his controul and 
 claim service from his apprentice for the remainder of 
 his time (i); a subsequent service of forty days, there¬ 
 fore, is under the indentures, and confers a settlement. 
 This has been decided in several cases. 
 
 A parish apprentice being regularly assigned to W. 
 served him till he was twenty years of age, when they 
 agreed to part, and W. gave him permission in writing, 
 signifying that he had his consent to serve any other mas¬ 
 ter. The apprentice then hired himself for a year to T., 
 and when he had been eight months in the service, his 
 master T. met W. by accident, who said, 44 I find you 
 44 have an apprentice of mineto which the master 
 answered, 44 I do not know I have; and then W. said, 
 “ J. D. (the pauper) is my apprentice, but you are wel- 
 46 come to keep him as long as you please, and may have 
 4 4 his indentures when you please; for I shall think no 
 44 more of him.” He gained a settlement under this con¬ 
 sent. (2) 
 
 A pauper, two months previous to the expiration of 
 his apprenticeship, had agreed with S. his master, to 
 
 (1) See the opinion of Buller, J. sent to this service with T., or to his 
 Rex v. Holy Trinity in the Mino- serving any particular person, but he 
 ries, 3 Term Rep. 603. told him at parting, that he would 
 
 (a) Rex v. Bradstone, 2 Bott, 434. think no more of him. See also Rex 
 PI. 459. The case ted, that W. <1/. the Holy Trinity in the Minories, 
 had never given any ticular con- pest. 517. (1). 
 
 cancel 
 
under the Indentures . 
 
 5*5 
 
 cancel the indentures, upon a condition which did not “ my heart; 
 take effect; and the indentures were neither cancelled “ i a t g'^ l d be * 
 nor given up. On the morning upon which the agree- “ thing for 
 ment was concluded, the pauper went to B. and offered “ you ” 
 to serve him, who said, he would not take him without 
 the consent of S. The pauper went to S. and told him 
 what B. had said. S. replied, (( you may go, with all my 
 heart; I think it will be a good thing for you to learn 
 the trade. This was held a sufficient assent by S. to 
 tne service with B. to enable the pauper to acquire a set¬ 
 tlement as an apprentice. For the master was applied to 
 for his consent to let him serve the particular person 
 named, and he expressed his approbation of that person 
 
 so named; it is therefore a particular consent to the par¬ 
 ticular service. (i) 
 
 An apprentice was bound to serve till twenty-four, Approbation 
 and at the age of twenty-two, his master agreed, that if ^jj 
 he would give him a guinea in hand, and two guineas to&JmT 
 more, being one guinea a year during the continuance of 
 his apprenticeship, he should go and serve whom he 
 pleased. But the master said he would not deliyer the 
 indentures, nor discharge him from his apprenticeship, 
 for he considered him as his apprentice still. The pau¬ 
 per agreed, and paid his master a guinea in hand, and 
 then hired himself to Miss Sainthill. At the end of the 
 first year, he went to his master, and paid him one guinea 
 for that year. His master said, “ you continue to work 
 with Miss S. I think it a very good place, and hope 
 “ you will continue in it.” At the end of the second 
 year, he went and paid his master the other guinea, 
 when he said, e< you still continue to work with Miss S.” 
 
 He replied, “ he did;” when his master said, he would 
 look out for the indenture, and give it to him. The 
 
 (i) Rex v. Shebbear, i East, 73, ante, 504. (1). 
 
 I. I. 2 
 
 pauper 
 
Service with 
 a second 
 master two 
 months be¬ 
 fore inden¬ 
 tures can¬ 
 celled. 
 
 Of the Service 
 
 pauper did not know that there was any conversation be¬ 
 tween the master and Miss S. respecting the apprentice¬ 
 ship ; but Miss S. knew he was an apprentice, and had 
 inquired his character. This was held a sufficient assent 
 to entitle the party to a settlement by service with Miss S. 
 as an apprentice. (i) 
 
 A parish apprentice, under age, was assigned to one 
 Prout. Afterwards he offered his service to Mason , who 
 apprehending that he was an apprentice, sent to Prout to 
 know whether it was with his consent that the pauper 
 should live with him: to which he answered, 44 with all 
 44 my heart; he may live with Mason, or any body else, 
 44 provided he performs his agreement with me; which 
 44 was, to pay one guinea a year during the remainder of 
 44 his apprenticeship.” This was held a consent by Prout , 
 and his consent included that of the first master. (2) 
 
 The pauper was bound apprentice to serve seven years. 
 Having served six, and being only nineteen, the master 
 declined business, when he informed the pauper, that he 
 wished him to get another master for his good. The 
 pauper went to his father, in another parish, with whom 
 he staid three or four weeks. Not meeting with a ser¬ 
 vice, he returned to his master, who told him, that he 
 heard Mr. E. wanted a man, and to go to E. and make 
 an agreement with him for his (the pauper’s) good; and 
 that he understood E. would take him for a twelvemonth. 
 The pauper went, and entered into an agreement, in 
 writing, under seal, but without stamp, to serve for a 
 year; to have board, lodging, and twelve pounds wages. 
 The indentures were neither assigned, nor cancelled; 
 but after he had served E. two months, his first master 
 gave him up his indentures. The service with E. is by 
 
 (1) Rex i’. Bradninch, Z Eott, 430. (2) Rex v. Tavistock, Eurr. S. C. 
 
 PI 4 56. ‘ 578. 
 
 the 
 

 V ' / 
 
 under the Indentures . 
 
 the first master’s recommendation, and with his consent, 
 and the indentures not being given up for forty days, 
 it was a service under them, and conferred a settle¬ 
 ment. (i) 
 
 In these cases, the leave was expressly given. In some 
 others there was an application to obtain it, while the 
 master seems in the remainder not only to have preserved 
 his control over the apprentice, but to have exercised it 
 with a solicitude for his welfare. But the great difficulty 
 is, to distinguish in cases where a general licence has been 
 originally given, between express consent, which legalizes 
 subsequent service, and such mere knowledge, that the 
 apprentice is in a particular service, as does not amount 
 
 to consent. (2) 
 
 \ 
 
 The following were considered as cases of knowledge 
 and acquiescence, on the master’s part, without con¬ 
 sent :— 
 
 Jj •) fL . •• 1 .. ' 
 
 The master of an apprentice failing in business, told 
 him he had no further employment for him, and he 
 might go where he pleased. Afterwards, and before 
 leaving his master, a person came to inform the appren¬ 
 tice, that one Underhill, who wanted a boy, was at an 
 inn in the neighbourhood, and that he should go to the 
 inn. As the apprentice was going out of the house, his 
 master met him, and asked him where he was going? 
 the pauper told him he was going down to Underhill. 
 The master said, “ he might go there, or where he 
 66 pleased.” Thereupon, the apprentice left his house, 
 and went and hired himself, and lived with Underhill; 
 but no communication look place between the original 
 master and him. This is not such an assent of the ori- 
 
 (1) Rex v. Holy Trinity in the (a) See ante, 510—5H. 
 
 Minories, 3 Term Ref. 605. 
 
 tt 3 ginal 
 
 5i7 
 
 Cases of 
 knowledge 
 of service, 
 without 
 consent. 
 
5 i8 
 
 \ 
 
 I have got 
 your ap¬ 
 prentice to 
 work. “ I 
 “ am glad 
 “ of it, lie 
 “ vvas a bad 
 “ lad, &c.” 
 
 Assent 
 where mas¬ 
 ter derives 
 benefit from 
 subsequent 
 service. 
 
 Of the Service 
 
 ginal master to serve with the second, as enables him to 
 gain a settlement thereby. For the pauper tells his mas¬ 
 ter, on being asked where he was going, that he is going 
 to Underhill: on which the master repeats, in effect, 
 what he had before said, that he might go there, or 
 where he pleased; meaning, that he no longer looked 
 for his service, nor took any concern how he disposed 
 of himself.(i) 
 
 An apprentice was assigned, by parol, to his brother, 
 W. Chapman, a journeyman bricklayer. Being about to 
 marry, he applied to W. Chapman, and told him he 
 wished to work, and provide for himself, to which W. C. 
 consented, and said, he might do the best he could for 
 himself, and did not afterwards consider the pauper as 
 his apprentice. But the indenture was neither delivered 
 up, nor cancelled, nor any thing said respecting it. In 
 the same month, and three quarters of a year before the 
 expiration of the apprenticeship, the pauper applied for 
 work to T. Penyston, who employed him in bricklayer’s 
 work, at weekly wages. About a month after, T. P. 
 met W.C. and told him he had got his brother at work; 
 to which W. C. replied, 44 I am glad of it; he was a bad 
 44 lad, and I could make nothing of him.” This was 
 held not to amount to an assent to the service with 
 the second master, upon the authority of the foregoing 
 case. (2) 
 
 It has been held, that the master may assent to the 
 apprentice’s working for himself, provided he is to de¬ 
 rive a benefit from that service, and his control con¬ 
 tinues ; because, in that case, it is actual service done 
 for the master. A parish apprentice, eighteen years old, 
 agreed with his master, 44 that he, upon paying twelve- 
 
 (1) Rex r v. Crediton, 1 East, 59. (a) Rex v. St. Helen, Stonegate, 
 
 ante, 51 a. 1 East, 285. 
 
 13 44 pence 
 
/ 
 
 under the Indentures . 
 
 <( pence a week, and providing for himself, should be at 
 “ liberty to work for his own benefit, during the re- 
 <c mainder of his apprenticeship.” The master was to 
 find him a loom, and was to “ receive the twelve-pence 
 “ a week as a satisfaction for his service during the re- 
 “ mainder of his apprenticeship.” Neither the church¬ 
 wardens nor overseers were privy to the agreement, nor 
 were the indentures cancelled, or delivered up. The 
 pauper then married, and worked for his own benefit, 
 his master providing him with a loom, and receiving the 
 one shilling per week. He worked during the last year 
 at Offerton, for the same tradesman who employed his 
 master; but such tradesman did not settle, nor in any 
 wise account with the master for the pauper’s work, or 
 earnings: nor did he work with him by the master’s 
 particular direction or consent; but the master provided 
 him with a loom, and knew, during all that time, where 
 and with whom he was working; and applied to him 
 twice during the last year of his apprenticeship, for the 
 arrears of the twelve-pence per week, due in pursuance 
 of the agreement, which he would have received, if the 
 pauper had been able to pay. The court were of opi¬ 
 nion, “ that the apprenticeship continued; that there 
 was no dissolution of it, nor any intention to dissolve it; 
 as between the original master and the apprentice, the 
 master knew that the apprentice worked at Offerton, 
 and demanded the twelve-pence a week for it. An 
 apprentice may work in any parish, with the consent of 
 his master; and it is probable, that the tradesman with 
 whom he worked knew that he was an apprentice, as 
 he employed the master. They held, therefore, that 
 the service in Offerton was under the indentures of ap¬ 
 prenticeship. (i) 
 
 (i) Rex v. Offerton, Burr. S. C. 802. 
 
 LL 4 
 
 \ 
 
 519 
 
 The 
 
520 
 
 4. Consent 
 must be by 
 master as 
 such. 
 
 Of the Service under the Indentures . 
 
 The consent must also be given by the master as such, 
 and while he conceives the indentures to continue in 
 force (i). For if the parties suppose, even erroneously, 
 that the indentures are cancelled, service with a third 
 person, although under an express consent, will be in¬ 
 sufficient. The pauper was bound by the parish officers, 
 at the age of eleven, to E. S. to serve till twenty-four. 
 He lived with E. S. five years, when his master gave 
 him up his indentures, and recommended him to live 
 with W. V., with whom he made an agreement, as a 
 servant, and served three years. Here “ the pauper 
 i( being a minor, could not consent to the discharge of 
 “ the indentures, without the consent of the parish 
 u officers.” (2) 
 
 And, per Lord Mansfield, C. J. 44 It seems to me 
 clear, that the pauper could not gain a settlement after 
 the first five years, under the indentures, as an appren¬ 
 tice; because neither party, in fact, considered the 
 service as such ; they considered the indentures as given 
 up, and put an end to for ever; so that the service was 
 not, nor was intended to be, in the capacity of an ap¬ 
 prentice.” (3) 
 
 The pauper having been regularly bound out by her 
 parish; the master, during her term, by a written in¬ 
 denture legally stamped, signed and sealed by all parties, 
 in consideration of 5I. 5 s., bound her with her own con- 
 
 (1) Per Le Blanc J. Rex v. 
 Christowe, n East, 95. 
 
 (2) Per Willes, J. post. (3). 
 
 (3) Rex v. Sandford, 1 Term Rep. 
 281. Buller, J. puts the settlement 
 on the ground “ that it was a mere re¬ 
 commendation to serve W. V., which 
 the pauper might have rejected or not, 
 as he pleased.” But the opinion of 
 
 Lord Mansfield, C. J. Rex v. Austrey, 
 ante, J12, (3), confirms this case. And 
 in Rex >v. Holy Trinity in the Mi- 
 nories, ante, 517. (1), Lord Kenyon, 
 C. J. distinguished that case, where the 
 parties had power to cancel, from Rex 
 v. Sandford, by resting the settlement 
 upon the residence of two months pre¬ 
 vious to giving up the indentures. 
 
 sent 
 
Of the Residence , S?c. 
 
 52i 
 
 sent to one S. as an apprentice, till she attained the full 
 age of 21 years. The court were of opinion, that she 
 did not acquire a settlement by her service with S. under 
 the second indenture: for the instrument purports to be 
 a new and original binding. Her first master does not 
 assume any right to assent to her serving another master 
 under the former indenture, but only to bind her de novo. 
 
 To contend that this was a consent on her part, that she 
 should serve S. as a continuation of the relation of her 
 original apprenticeship, would be contrary to what 
 appears upon the face of the instrument to have been the 
 intention of the contracting parties. (1) 
 
 But no distinction arises from the parties having it Circum- 
 in contemplation to give up the indentures (2), or the st ?? c , es 
 
 . . . L v n ' which do 
 
 apprentice entering into a new relation of servitude, not affect 
 either by binding himself as an apprentice (3), or ser- ^workwkh 
 vant(4), although he does it with the master's know- another 
 ledge, and under seal (5), or that the person, receiving mastLT< 
 him, knows him to be an apprentice (6). It is also 
 unnecessary, in cases of particular consent, that the first 
 master should derive any benefit from the service under 
 
 SECT. V. 
 
 Of the Residence by , and Place in, which an Apprentice 
 
 acquires a Settlement. 
 
 A servant cannot gain a settlement until his year of Distinction 
 service is complete. It floats undetermined until that betw e«nre 
 
 (1) Rexv. Christowe, 11 East, 95. 
 
 (2) Rex i/> Holy Trinity in the 
 
 (6) Rex v. Bradninch, ante, 516. 
 
 «• 
 
 (5) Ante, n. (2). 
 
 Minories, ante, 517. (i). 
 
 (3) St. Petrox v. Stoke Fleming, 
 ante, 509. (5). 
 
 (7) Rex v. Fremington, ante, 510. 
 (1). Rex v . Holy Trinity in the 
 
 (4) Rex -v . St. Mary, Lambeth, Minories, ante, (2). 
 
 ante, 510. (j). 
 
 expires, 
 
522 
 
 apprentice, 
 and servant. 
 
 Arrange¬ 
 
 ment. 
 
 Settlement 
 in parish or 
 town. 
 
 i 
 
 Of the Residence by , and Place in , which 
 
 expires, and he is then settled in that parish or town 
 wherein he has served the last forty days, capable of 
 conferring a settlement. (i) 
 
 But forty days’ residence and service under indentures 
 confer an absolute settlement, which no subsequent dis¬ 
 qualification by certificate, or otherwise, can defeat (2). 
 If the apprentice reside so long in one parish, although 
 the indentures are cancelled on the forty-first day after 
 their execution, he has acquired a settlement. (3) 
 
 It is rightly observed by Dr. Burn, therefore, “ that 
 u an apprentice may gain as many settlements as there 
 “ are spaces of forty days in the term of his apprentice- 
 “ ship.” (4) 
 
 This is the principal distinction between residence as 
 a servant, and as an apprentice. 
 
 The questions and cases which respect this subject 
 will be arranged therefore in the same order as was pur¬ 
 sued in treating of the residence of hired servants. The 
 reader will find in the section on that subject (5) a minute 
 explication of the principles, which it would be useless 
 and irksome to repeat here. 
 
 An apprentice cannot acquire a settlement except in a 
 parish or township having overseers (6); for the 13 & 14 
 
 (1) Ante, 420. et seq. 
 
 (2) See Rex -v. Clifthydon, Burr. 
 S. C. 161. St. Cuthbert’s v. West- 
 bury, Burr. S. C. 470. 
 
 (3) A servant may acquire a settle¬ 
 ment by a residence of 40 days, di¬ 
 rectly subsequent to his year’s hiring, 
 but he must have served an entire 
 year. 
 
 (4) 3 Burn’s Justice, Title Poor, 
 Settlement by apprenticeship. 
 
 (5) Ante, chap. xx. sect.v. p. 418. 
 
 (6) Clerkenwell v. Bridewell, I 
 Lord Raym. 549. Rex v. Cirences¬ 
 ter, 1 Str. 579. St. Mary Colechurch 
 v. Radcliffe, 1 Str. 60. post. 525. 
 
 (*)• 
 
 Car. IL 
 
an Apprentice acquires a Settlement. 
 
 Car. II. c. 12. extends only to such places, and the pro¬ 
 visions of 3 W. & M. are expressly confined thereto. 
 
 He must reside forty days in the character of appren¬ 
 tice, and free from incapacity to acquire a settlement. (i) 
 
 % 
 
 But it is unnecessary that the days should run in un¬ 
 broken succession. A residence at intervals will connect 
 for the purpose. (2) 
 
 Neither does it make any distinction, that the residence 
 is interrupted by periods of inhabitancy in a place where 
 no settlement can be acquired. An apprentice t£ served 
 his master mostly on ship-board at sea, but inhabited the 
 parish of West Stockwith the first fourteen days of his 
 apprenticeship, and so many days after, at many different 
 times, as, with those fourteen days, amounted to upwards 
 of forty days in the whole, and in no other parish for forty 
 days during his apprenticeship.” He was held settled 
 in West Stockwith. (3) 
 
 ~ iijqr # cr- JMfcLUO :>/>. .1 a.*: 
 
 And the rule is the same where the incapacity arises, 
 not from the place, but from a defect in the service. 
 Residence at any distance of time during the conti¬ 
 nuance of indentures will connect, notwithstanding the 
 intervention of service and residence, which confer no 
 settlement, provided the relation of master and appren¬ 
 tice continues to subsist. 
 
 523 
 
 
 Reside 40 
 days. 
 
 Of connect¬ 
 ing services. 
 
 When in¬ 
 habitancy 
 in a place 
 where no 
 settlement 
 is gained. 
 
 When inter¬ 
 vals of ser¬ 
 vice, by 
 which no 
 settlement 
 gained. 
 
 (1) St. Cothbert’s v. Westbury, 
 Burr. S. C. 470. Missenden v. Grims- 
 field, Fol. 157. But the ground of 
 this latter determination was, that the 
 agreement to reside alternately was 
 fraudulent. 
 
 (a) Rex v. Sandford, 2 Bott, 398. 
 PI. 426. Rex •u. Brighthelmstone, 
 5 Term Rep. 188. Rex v. Cirences¬ 
 
 ter, Cas. Sett, and Rem. 119. Rex v. 
 St. George’s Hanover Square, ante, 
 510. (3). Rex v. Fremington, ante, 
 510.(1), seems contra; the law, 
 however, is settled by the subsequent 
 cases as above cited. 
 
 (3) Rex v. Gainsborough, Burr. 
 S. C. 586. 
 
 Sage 
 
4 
 
 ^ 24 Of the Residence by, and Place in, which 
 
 Sage gave lip the indentures to his parish apprentice, 
 then aged eighteen, without the parish officer’s consent, 
 and recommended him to live with Verney, with whom 
 the pauper made an agreement as a servant, foi three 
 years. Having served that time, he resided in another 
 place for three months, and then returned to his original 
 master for a month, paying him sixpence a week for 
 lodging. Willes and Buller J. were oi opinion, that this 
 last residence w r ould connect with that which took place 
 antecedently in the parish with the same master, prioi to 
 giving up the indentures, so as to confer a settlement. (i) 
 
 Settled The settlement of an apprentice, like that of a servant, 
 
 h-Tni ht CpS is where he has last resided forty complete days. He is 
 a t n g settled finally, therefore, where he sleeps the last night, in 
 his condition of an apprentice, provided he has resided 
 there forty days altogether. (2) 
 
 Working Likewise, if the apprentice serve his master in one 
 hibkancy"" parish, and reside in another, the settlement is gained, 
 insufficient. no t where he works', but where he sleeps; for it is there 
 that he inhabits : and one condition for gaining a settle¬ 
 ment required by 3 W. & M. c. 11. s. 8. is, that the 
 person shall be bound an apprentice, and inhabit in the 
 town or parish. (3) 
 
 (1) Rex v. Sandford, iTerm Rep. 
 281. In the first of these reports a 
 mistake occurs in printing the name of 
 Verney for Sage. See also Rex u. 
 Charles, Burr. S.C. 706. 
 
 (2) Rex v. Brighthelmstone, and 
 the cases supra, 523. (a). 
 
 (3) Rex v. St. Peter’s on the Hill, 
 2Bott, 393. PI. 422. The opinion 
 of Parker, C. J. and Pratt, J. in St. 
 Mary Colechurch v. Ratcliffe, post. 
 525.(l),and that of the chief justice in 
 Rex v. St. Olave’s, is contra. But 
 
 the opinions were extra-judicial, and 
 the law is now settled otherwise. Rex 
 v. Spotland, Burr. S. C. 52 7 - These 
 cases decide, that the settlement is 
 where the apprentice sleeps; but it was 
 ruled in several prior cases, that ser¬ 
 vice, without residence, gave no settle¬ 
 ment. See Rex v. St. Olave’s Jewry, 
 2 Bott, 390. PI. 417. St. Mary 
 Colechurch v. Ratcliffe, Ibid. 391. 
 Pi. 418. St. John Baptist, and St. 
 James, IK 390. PI. 420. 
 
 This 
 
cm Apprentice acquires a Settlement . 
 
 This rule obtains, although the apprentice should be 
 deprived of a settlement under his indentures, by ad¬ 
 hering thereto. An apprentice to a sea-captain serving 
 his master every day on shore, and sleeping every night 
 on board a ship, then lying in an extraparochial place, 
 gains no settlement under his indentures. (i) 
 
 Neither is the master’s permission to sleep in the parti¬ 
 cular parish necessary. An apprentice married during 
 his apprenticeship, and afterwards worked, and dieted in 
 the day-time with his master in the parish of C. (where 
 the master lived, and carried on his trade). The master 
 knew of the marriage, and that his apprentice lodged at 
 nights with his wife at her father’s in the parish of H. 
 but the master was not asked, nor did he give him leave 
 to do so; but he knew of it. The pauper was held set¬ 
 tled at H.; the place where an apprentice lies being that 
 of his settlement. (2) 
 
 And, if we may conclude from analogy to the case of a 
 servant, the master’s knowledge of the fact seems as im¬ 
 material as his consent {3), provided the apprentice con¬ 
 tinues under his master’s control. (4) 
 
 It makes no difference, likewise, whether he inhabits 
 on land or on ship-board, if the place in which the 
 vessel lies is within a town or parish (5), or whether the 
 master has gained a settlement in the place, or lives as 
 a housekeeper, or merely sojourns with one ( 6 ); or whe- 
 
 (1) St. Mary Colechurch v. Rat- 
 cliffe, 1 Str. 6a. Cas. Sett. 105. 
 
 (2) Rex v. Castleton, Burr. S. C. 
 569. Contra, where the pauper’s 
 master was certificated to the parish in 
 which he slept, and the certiScate not 
 abandoned. Rex -z/. Spotland, Burr. 
 S. C. 517. 
 
 ( 3 ) Ante, 423. 
 
 (4) See Rex u. Smardeu, 13 East, 
 4 J*. 
 
 (i) Rex v. Burton Brudstock, 
 Burr. S. C, J31. Rex v. Topsham, 
 7 East,466. 
 
 (6) Stoke Flemming v. Berry Pom- 
 roy, 2 Bott, 392. PI. 421. 
 
 I 
 
 525 
 
 Master’s 
 consent un¬ 
 necessary. 
 
 Mode of in¬ 
 habiting, 
 and master’s 
 condition 
 immaterial. 
 
 ther 
 
$26 
 
 Except ser¬ 
 vant reside 
 from illness 
 away from 
 his master. 
 
 Of the Residence by, and Place in, which 
 
 ther he goes there for a temporary purpose (i), or does 
 not reside in the parish at all (2), or is without settle¬ 
 ment there. (3) 
 
 But the court has taken the same distinction in the case 
 of apprentices, as was done in that of servants, viz. that 
 if an apprentice live apart from his master through illness, 
 he is not settled where he resides, but where he had pre¬ 
 viously dwelt the last forty days under his indentures. (4) 
 
 An apprentice had slept more than forty nights of his 
 apprenticeship at Selby, but slept the last night at B. at 
 his grandmother’s, in which place he had before slept 
 more than forty nights, with his master’s consent, in 
 consequence of his being ill of a fever, and he never slept 
 in B. except as above stated. The court were of opinion, 
 that the residence in B. being on account of illness, was 
 not residence as an apprentice; and that 3 W. III. c. 11. 
 which directs, that if any person shall be bound an ap¬ 
 prentice, and inhabit in any parish, such binding and inha¬ 
 bitation shall be adjudged a good settlement, &c. must be 
 understood of an inhabitation referable in some way to 
 the apprenticeship. But that the residence here with the 
 grandmother was no more referable to the apprentice¬ 
 ship than if the pauper had resided in an hospital or 
 prison. (5) 
 
 He acquires one, however, in such parish if he per¬ 
 forms any service for his master, either there or else¬ 
 where, during his residence there. 
 
 An apprentice served his master twelve months, when 
 being afflicted with the scrofula he left him and went to 
 
 (1) Rex v. Charles, post.527. (2). (3) Stoke Fleming v. Berry Pom- 
 
 (2) Rex v. Castleton, ante,52j. (2), roy, ante, 525. (6) 
 
 and the cases, ib. Rex v. Topsham, (4) Rex v. Titchfield, Burr. S. C« 
 ante, 525. (5), Rex «y. St. George’s 511. As to servants, see ante, 424. 
 Hanover Square, Burr,S. C. 12. (5) Rex v. Barmby in the Marsh, 
 
 7 East, 381. 
 
 live 
 
V 
 
 an Apprentice acquires a Settlement. 527 
 
 live at his mother’s in the adjoining parish, and slept 
 there more than 40 days, during which time he went 
 almost every day to his master’s, and was sometimes em¬ 
 ployed by him three or four hours a-day, and was always 
 ready at his master’s house when wanted, but was un¬ 
 able to work at his trade. His service with the master 
 continued while he resided with his mother, and there¬ 
 fore he gained a settlement by residence the last forty 
 days in that parish where he lodged with her. (1) 
 
 \ 
 
 It seems, however, that an apprentice, being an in- Otherwise 
 curable cripple, who resides in the same parish with his wkhhfm? 
 master, being put out there by him, will gain a settlement 
 thereby. The pauper was bound apprentice by the parish 
 to F., who applied to Mrs. L. his landlady to take the 
 pauper, in consequence of a covenant in his lease. Mrs. 
 
 L. did so, received the parish money, and took the pau¬ 
 per into the parish of Roseash, where she then lived, and 
 where he resided with her for three years. In conse¬ 
 quence of his becoming a cripple, Mrs. L. insisted upon 
 F.’s taking him back, which he refused to do, unless she 
 agreed to pay him all the expences he should be at in 
 taking care of him. Having agreed to do so, F. put him 
 out to live with the apprentice’s grandmother, in F.’s 
 own parish of Knowstone, at so much a-week, and he 
 resided there forty days. The court held, that the inden¬ 
 tures not being discharged, he acquired a settlement un¬ 
 der this residence in Knowstone, thereby superseding a 
 prior settlement, gained by service, under his indentures, 
 with Mrs. L. in the parish of Roseash j for the perform¬ 
 ance of service is not the material thing, and this resi¬ 
 dence cannot be deemed casual. (2) 
 
 .The 
 
 (1) Rex v. Stratford-upon-Avon, 706. It was observed by Le Blanc J, 
 
 II East, 176. that it was not considered in this case 
 
 (a) Rex v• Charles, Burr. S. C. that the pauper went te Knowstone for 
 
 the 
 
4 
 
 r2 s Of the Residence by, and Place in , 'which 
 
 The remaining circumstances necessary to the resi¬ 
 dence of an hired servant, are peculiar to that species of 
 settlement. 
 
 Must reside It is evident, from the words of the statute 3 W. & M. 
 dentures. c. 11 . and the cases already cited, that an appren¬ 
 tice must reside in the place in which he seeks a settle¬ 
 ment, subject to the binding power of his indenture, and 
 the control of his master. (1) 
 
 I V 
 
 A. was bound apprentice to a mariner. Having served 
 him three years, he heard that his master had become 
 a bankrupt, and left T., his place of abode. He applied 
 in consequence to the agent of the vessel for money to 
 enable him to return to T. On his arrival at T. he 
 resided with his uncle, not being able to find his master, 
 xvhom he has never seen nor served since. The court were 
 of opinion that he gained no settlement by this residence 
 in T.; for it appeared by the case that A. never returned 
 to his master’s service in the parish of JT., for his master 
 had absconded before his return, but he went to live 
 with his uncle; and it is expressly found, that he never 
 saw nor served his master afterwards. In Rex v. 
 Brighthelmstone (2), the apprentice returned to his mas¬ 
 ter again in the original parish. (3) 
 
 9 
 
 One apprenticed for seven years, served his master 
 in S. till within four months of the expiration of his 
 term, when his master agreed that he should serve O. 
 - during the remainder of the term in the parish of H., 
 who was to board and lodge him, and pay the original 
 
 the purpose of cure, but that the ori- (i) Ante, sect. iv. jc6. 
 
 ginal master, who lived in the same (2) Ante, 523* n > ( 2 )» 
 
 parish, and was bound to receive him, (3) v. I opsham, ante, 5 * 5 * 
 
 did receive and place him there, n. (5). 
 
 Rex v. Ssratford-upon-Avon, 11 Eas*-, 
 
 176. 
 
 r 
 
 14 
 
 master 
 
an Apprentice acquires a Settlement. 529 
 
 * 
 
 master 3 s. weekly for his services, which agreement was 
 made without consulting the apprentice. Having served 
 O. three months in H. and being dismissed by him, at 
 the request of the officers of that parish, the appren¬ 
 tice, unknown to his original master and without any 
 intention ot returning into his service, lodged one night 
 in his first master’s parish, S., and then went into a third, 
 where he w orked for himself for a month when his term 
 expired; he then went with his original master to a com¬ 
 mon friend, with whom his indenture was deposited, and 
 took it up. It w^as held that his residenceforthe last night 
 in S. being merely casual and not under the indenture, 
 could not be coupled with his antecedent residence so as 
 to bring back his settlement there, and supersede that 
 which he had acquired in H. under the agreement made 
 by his original master with O. (1) 
 
 # While he resides in his master’s service, no change in Distinction 
 his condition creates an incapacity to acquire a settle- betvveenser - 
 
 . . . n J - 1 vants and 
 
 ment, as it may in the case of a servant (2). Those points, apprentices, 
 therefore, respecting a servant’s residence under incapa- ^^under 
 cities, which have been formerly discussed, will seldom or incapacities, 
 never arise. Questions upon residence, under distinct 
 deeds of apprenticeship, with the same, or different mas¬ 
 ters, can hardly originate in a transaction of this nature. 
 
 But if chance should give birth to such a case, the court 
 would, in all probability, consider it as governed by the 
 same rules which apply to an hired servant under the 
 like circumstances. 
 
 It is of the utmost importance to render this part of 
 the law, not only certain, but easy and plain, and not 
 to encumber it with nice or numerous distinctions. The 
 
 (*) Rex v. Smarden, 13 East. 452. in the Marsh, ante, 526. But the 
 (2) Ante, 410. See also Rex "j. observation admits of some exceDtion 
 Chirk, ante, 512. Rex <i>. Barmby in the case of certificates. See post. 
 
 vol. i. M m judges 
 
 \ 
 
 / 
 
53 ° 
 
 Proof of 
 settlement* 
 
 i. The 
 binding. 
 
 Deed in cus 
 
 tody of 
 others. 
 
 Stamp. 
 
 " * > 
 
 i 
 
 . Of the Proofs necessary to establish 
 
 judges have inclined with this view, to a conformity of 
 decision, between the two species of settlement, so far as 
 the express provisions of the several statutes upon which 
 they respectively depend are found to admit of it. 
 
 i • 
 
 There are no particular statutory disabilities which re¬ 
 spect settlements by apprenticeship. Such as relate to 
 certificates will be treated of in another place. 
 
 SECT. VI. 
 
 Of the Proofs necessary to establish a Settlement by Ap¬ 
 prenticeship. 
 
 In order to establish a settlement by apprenticeship, it 
 is necessary to prove, i st, The binding by indenture; 
 2d, The identity of the apprentice; 3d, His service and 
 residence of forty days in the town or parish; 4th, If 
 the service is with any other than the original master, 
 his consent. 
 
 To prove the binding, the deed of apprenticeship, if in 
 existence, and not in the hands of the opposite party, 
 must be produced (1). If in the custody of a third per¬ 
 son, he should be served with a subpoena duces tecum , to 
 bring it with him on the hearing of the appeal. If pos¬ 
 sessed by the opposite party, he should be served with 
 notice to produce it. It will appear, by the deed, whe¬ 
 ther it is properly stamped, without which it cannot be 
 read in evidence (2). But the court may look into it for 
 
 , s - v * ' * 
 
 (1) Rex 1'. Hclbeck in Leeds, (2) Rex v, Holbeck, ante, n. (r). 
 Burr. S. C. 198. Rex v. St. Helens, 
 
 Burr. S. C. 735. 
 
 the 
 
a Settlement by Apprenticeship . 
 
 the purpose of seeing when it ceased to operate, in order 
 to guide them as to receiving parol evidence respecting a 
 subsequent settlement. (i) 
 
 The execution, or signing, sealing, and delivery, is 
 to be proved, unless in certain cases, which will be men¬ 
 tioned hereafter. 
 
 If there be no subscribing witness (2), or the name 01 a 
 fictitious person has been put as such (3), or ft he who 
 subscribes the deed as such denies having seen the execu¬ 
 tion (4), it is sufficient to prove the hand-writing of the 
 parties. If a parish indenture be unattested, proof of the 
 hand-writing of the parish officers who signed it, is pei- 
 haps sufficient in a question with the parish. But, as 
 against third persons, all material signatures which ap¬ 
 pear on the deed, should be proved. 
 
 If the deed is regularly attested by one witness, he 
 should be produced, unless he labours under some inca¬ 
 pacity (5). It is unnecessary that he should see the party 
 sign. If the latter be in an adjoining room, and brings it 
 to the witness, acknowledging that he has signed and 
 sealed, that is sufficient. (6) 
 
 If the witness be dead (7), or blind (8), or mad (9), 
 or abroad (10), whether domiciled there, or not (11), or 
 
 (1) Rex'v. Pendleton, 15 East. 449. 
 
 (2) Com. Dig. Tit. Fait. (B. 4). 
 Vide 1 Lev. 25. Rex v. Middlezoy, 
 
 post. 535 ( 4 ). 
 
 (3) Fasset v. Brown, Peake’s N.P. 
 Cas. 23. 
 
 (4) Grellier <v. Neale, ib. 146. 
 
 (5) Breton w. Cope, Peake’s N. P. 
 C. 30. Buckley v. Smith, 2 Espin. 
 N. P. C- 697. 
 
 (6) Park <v. Mears, 2 Bos. and Pul. 
 219. Powell v. Blacket, 1 Espin. 
 N. P.C. 97. 
 
 (7) Barnes‘z/.Trompowsky, 7 Term 
 
 Rep. 265. 
 
 (8) Wood v. Drury, 1 Lord Raym. 
 
 734 - . 
 
 (9) 12 Vin. Abr. (T. 6. 48). PI. 12. 
 
 (10) i. e. in a countryout of the ju¬ 
 risdiction of the superior English courts, 
 Prices Blackburn, 2East,250. Cogh- 
 lan nj. Williamson, Dougl. 93. Holmes 
 <u.Ponten, Peake’s N.P.C. 99. Barnes 
 •v. Trompowsky, ante, (7). Adams v. 
 Ker, 1 Bos. and Pul. 360. 
 
 (a) Price <v. ^lackburne, ante, (10); 
 and see 26 Geo. III. c. 57. s. 38. as to 
 the testimony of persons residing in the 
 East Indies. 
 
 53 1 
 
 Proof of ex¬ 
 ecution. 
 
 How proved 
 when no 
 subscribing 
 witness. 
 
 When at-- 
 tested.’ 
 
 Witness in¬ 
 capacitated. 
 
 MM2 
 
 cannot 
 
532 
 
 When two 
 witnesses. 
 
 ftand.writ¬ 
 ing how 
 proved. 
 
 Of the Proofs necessary to establish 
 
 cannot be found after diligent inquiry (i), or is incapa¬ 
 citated by crime (2), or interest (3), it will be sufficient 
 to piove his hand-writing, after shewing his situation. 
 
 If there are two or more witnesses to the execution, 
 it is sufficient to call one. If some are incapacitated 
 one must be called who is not. If all labour under in¬ 
 capacity, it is sufficient to prove the signature of one (4). 
 t was held in one case, that under such circumstances, 
 the signature of the witness, and also of the party, must 
 be proved (5.) But this has since been adjudged unneces¬ 
 sary ; for that of the attesting witness, when proved, is 
 evidence of every thing on the face of the paper (6). 
 Where one witness was dead, and the other denied the 
 execution of the instrument, but acknowledged his sig¬ 
 nature, Lord C. J. Holt admitted evidence of the other’s 
 writing. (7) / 
 
 Proof of hand-writing must in general be either from 
 having seen the party write the signature in question, 
 01 fiom previous acquaintance with his writing. The 
 most usual method of acquiring this knowledge is by 
 having seen him write. Yet it is sufficient if it be derived 
 from a correspondence in writing with the party (8). But 
 the witness must know, that the letters were written by 
 
 v*; See Cunliffe v. Sefton, 2 East, 
 183. 
 
 (2) Jones a/. Mason, 2Str. 833. 
 
 (3) Godfrey v. Norris, 1 Str. 34. 
 Goss^. Tracey, 1 P.Wms. 289. Swire 
 1/. Bell, 5 Term Rep. 372. 
 
 (4) Adams v.Ker, 1 Bos. and Pul. 
 360. Cunliffe-u. Sefton, 2 East, 183. 
 But Wallis <v. De Lancey, 7 Term 
 Rep. 266. n. c. is contra. 
 
 (5) Wallis v. De Lancey, supra, 
 n. (4). 
 
 (6) Adams v. Ker, supra, (4), Cun¬ 
 
 liffe -V. Sefton, ib. and see Price «/. 
 Blackburne, 2 East, 250, 
 
 (7) Blurton v. Toon, Skin. 639. 
 
 (8) Gould v. Jones, Bull. L. N, P 
 236. 1 Black. Rep. 384. Lord Fer¬ 
 rers at. Shirley, Fitzg. 195. where the 
 party resided abroad, to which case the 
 rule is confined by Willes v. Singer. 
 Espin. N.P.C. 144. But the reason 
 extends to correspondence in this coun¬ 
 try. See the opinion of Lord Ray¬ 
 mond, C.J. in Lord Ferrers */. Shirley, 
 and the constant practice at present is 
 to admit such proof. 
 
 {he 
 
a Settlement by Apprenticeship* 53$ 
 
 the particular individual, as by having received them in 
 the course of correspondence, or the like. Having seen 
 the superscription of letters which passed at the post-office, 
 as his franks, or perused papers, not received from the 
 party by the witness, but by others, who told the witness 
 from whom they came, is not sufficient; for they may 
 have been forgeries. (1) 
 
 Evidence by mere comparison of hand-writing is inad- ^°^ d r s iso " 
 missible: there must be a degree of habitual acquaintance 
 with the writing. (2) 
 
 The rule, however, as to the inadmissibility of proof 
 of hand-writing by comparison, is narrowed to instances 
 where the nature of the case admits of the hand-writing 
 being proved by living evidence. Therefore an ancient 
 instrument may be shewn to be the writing of a particular 
 person, by comparing the writing with that of some other 
 document proved to be written by him. (3). * 
 
 Slight knowledge acquired from competent sources is, Degree of 
 primd facie, sufficient to prove a signature. But it must be knowledsc ” 
 
 (1) Lord Ferrers v. Shirley, ante, 
 53a. (8), Carey v. Pitt, Peake’s Law 
 of Ev. App. 40. 
 
 (2) Brookbank v. Woodley, coram 
 Yates, J. 4 Supp. Vin. Abr. (A. 6. 
 21.) PI. 6. Stanger v. Searl, i Espin. 
 N. P. C. 14. Macpherson i/.Thoytes, 
 Peake’s N. P. C. 20. Rex v. Cator, 
 
 4 Espin. N.P. C. 117. The point 
 seems very clear; if the jury or other 
 tribunal are required to find the fact by 
 comparing the exhibit with other sig¬ 
 natures, proved to be the hand-writing 
 of the party. But the distinction 
 grows nice, when a witness is called to 
 speak to it; for, unless where he has 
 seen the instrument actually written,he 
 
 M M 
 
 must in all cases speak from a compari¬ 
 son which he institutes between it, and 
 what he recollects of other pieces of 
 the party’s writing. See Bull. L. N. P. 
 206. and a case cited there before Lord 
 Hardwicke, C. Allesbrook 1/. Roach, 
 Peake’s L. Ev. 104. Da Costa v. Pym, 
 x Espin. N. P. C. 351. Peak. Evid. 
 App. 22. S. C. Goodtitle v. Braham, 
 4 Term Rep. 497. and Osburn v. Ho¬ 
 sier, 6 Mod. 167. 
 
 (3) Per Le blanc, J. Roe ex dem. 
 Brune v. Rawlings, ^ East, 282. Per 
 Hardw. C. 6 Dec. 1764. Bull. L. N. 
 P. 236. See also Moorewod v. Wood, 
 M. 32 G. III. 14East, 327. 
 
 3 
 
 derived 
 
534 
 
 Of the Proofs necessary to establish 
 
 derived solely from acquaintance with the hand-writing; 
 belief founded upon extraneous circumstances, such as 
 the witness’s knowledge of the party, and the nature of 
 the deed, are inadmissible. (i) 
 
 seahng^r.d , ^ “ ie signature is proved, the sealing and delivery shall 
 
 d&livery. oe presumed (2); at least where the attestation imports 
 so much (3). But if by special custom anything is equi¬ 
 valent to sealing a deed, that custom must be proved (4). 
 Actual proof may rebut the presumption of a proper 
 delivery, which arises from attestation. 
 
 Mvery, Casting a deed upon the table, without doing more, 
 does not amount to a delivery (5). But casting it upon 
 the table, saying, this will serve, is sufficient. (6) 
 
 Assent of In the case of parish apprentices, the assent of two in¬ 
 parish in- Glces is necessary (7); and if given in writing, the signa- 
 dentures. tures must be proved in the same manner (8), and subject 
 to the same rules as the execution of indentures. But 
 there is no occasion to prove their appointment as magis¬ 
 trates. For, e< in the case of all peace-officers, justices of 
 the peace, constables, &c. it is sufficient to prove that they 
 acted in those characters, without producing their ap- 
 
 (1) Da Costa v. Pym ante,533.( 2). 
 Balcetti u. Serrani, Peake N. P. C. 
 142. 
 
 (2) Grellier v. Neale, Peake’s N. P. 
 C. 146. Adams v. Iver, post. (4) ; 
 and see Stone v. Grubham, Roll. 
 Rep. 3. 
 
 (3) Even where there is no sub¬ 
 scribing witness, the presumption seems 
 in favour of delivery, as signing and 
 sealing would otherwise be nugatory ; 
 and at all events this presumption may 
 be raised or rebutted in such a case, by 
 extrinsic circumstances, such as the 
 custody of the deed, &«. See Hands 
 v. James, Com. Rep. 531. 
 
 (4) Adams v. Ker, 1 Bos. and Pul. 
 
 360. 
 
 (5) Chamberlain v. Staunton, 1 
 Leon. 140. PI. 193. Cro.Eliz. 122., 
 S.C. 
 
 (6) Ibid. 
 
 *• 
 
 (7) Rex v. Hamstall Redware, 3 
 Term Rep. 380. Rex Wrnwich, 
 
 8 Term Rep. 454. And see ante, 485. 
 n.(1). 
 
 (8) See Rex v. Bilton, 1 East, 13. 
 the examination of a soldier under the 
 Mutiny Act, touching his settlement 
 ante, 445. (3). 
 
 pointments; 
 
a Settlement by Apprenticeship. 535 
 
 pointments; and that even in the case of murder (i).” 
 
 And in an indictment for disobeying a justice’s order for 
 diverting a road, it was held unnecessary to produce the 
 commission of peace to prove the persons to be magistrates 
 who signed the order. (2) 
 
 Where the master has signed the counterpart, he is 
 estopped from shewing that the indenture and counter¬ 
 part were at that time signed by one justice only. (3) 
 
 It was formerly adjudged, that proof of the execution Proof of ex- 
 
 pit j p , i ecution un- 
 
 w r as unnecessary, if the deed came out 01 the hands 01 the necessary, 
 adverse party. For the side relying upon it cannot know Deed ^ 
 who are the subscribing witnesses, or come prepared to adversary, 
 prove the execution (4). Therefore in the case of an appeal 
 between two parishes, it was held unnecessary for the res¬ 
 pondents to prove the execution of indentures of appren¬ 
 ticeship, they being in the custody of the appellant parish, 
 and produced by them (5). The propriety of this de¬ 
 cision was doubted by very high authority. For, in a 
 subsequent case, where a similar point came before the 
 court, Lord Kenyon said, “it was too important a question 
 to be discussed in a sessions case, where the opinion of a 
 court of error could not be taken; and that nothing but 
 a solemn judgment of the house of lords should ever per¬ 
 suade him that the above decision was right.” (6) 
 
 The rule seems reasonable where those who retain the 
 custody appear parties to the instrument, or preserve it as a 
 
 (1) Per Buller, J. Berryman v. (3) Rex v. Saltern, Cald.444. 
 
 Wise, 4 Term‘Rep. 366.; andsode- (4) Rex 1/. Middlezoy, a Term 
 
 termined by all the Judges in Gordon’s Rep. 4r. 
 
 Case, Leach. Cro. Law, Cas. 278 n. a. (5) Supra, n. (4). 
 
 (2) Per Hotham,B. after conference (6) Rex v. Dalton, Mich. 41 G.Ill- 
 
 with H eath, J. Rex v. -Kingston Peake’s Law of Evid. 2 Edit. 109. 
 
 Lent Assizes, 1801. 
 
 <* 
 
 M M 4 
 
 document 
 
Of the Proofs necessary to establish 
 
 document of a title or right (i). For, in the first case, 
 they may disprove the execution; and in the second, it 
 deiives authority from being preserved by them. 
 
 But the point has been decided the other way, and 
 
 Rex v. Middlezoy is now overruled by the following 
 case: 
 
 necessary . In an actlon on a P olic y °f insurance, the declaration 
 though deed contained an averment of the plaintiffs’ interest. The 
 
 sary’s cus- defendant moaning to dispute their interest, gave them 
 tody. notice to produce at the trial certain articles of agree¬ 
 
 ment between them (who were also owners of the ship) 
 and the captain, whereby he contended it would appear, 
 that the captain, who was not a plaintiff, was interested 
 in one third of the cargo; and if so, the defendant having 
 paid more than enough into court to cover the plaintiffs’ 
 shares, would have been entitled to a verdict, unless the 
 plaintiffs were entitled to recover the remainder of the 
 M,m ’ n as trustees for the captain, which depended 
 on the construction of the articles. The plaintiffs pro¬ 
 duced the instrument at the trial, in pursuance of this 
 notice, when there appeared to be two subscribing wit¬ 
 nesses to it, and therefore the plaintiffs insisted that the 
 defendant could not give it in evidence, without calling 
 one of those witnesses; and Lord EUenborough being of 
 that opinion, the plaintiffs recovered. 
 
 (i) It does not appear in Rex v, 
 Middlezoy, whether the pauper was 
 hound out by Sydbury parish; if it was 
 so, then, the parish which produced the 
 indentures was party to the binding. 
 j. he notice also was, to produce at the 
 trial of the appeal “ a certain indenture 
 of apprenticeship bearing date, on or 
 about, &c. And being described as 
 
 a valid deed, the opposite party by pro¬ 
 ducing it under that description, seem¬ 
 ed to admit it to be so. Vide Passal 
 v. Godsal, 2 Term Rep. 44. But no 
 such notice is stated in Thomson 
 Jones, ib. Yet the lease was held ad¬ 
 missible, “ as coming out of the hands 
 of the other party.” 
 
 On 
 
a Settlement by Apprenticeship * 
 
 ' On a motion for a new trial, it was argued that 
 the instrument, coming out of the plaintiffs’ hands 
 upon notice to produce it, was not necessary to be 
 proved by one of the subscribing witnesses, according 
 to the rule laid down in Rex v, Middlezoy. But 
 Lord Ellenborough, C. J. said “ that the case of the 
 King v. Middlezoy, which was much questioned at 
 the time, had been since overruled; and that it was 
 not enough to give notice to the opposite party in a cause 
 to produce an instrument in his hands, in order to dis¬ 
 pense with any further proof of it by the party giving the 
 notice; but that the production of it at the trial, in pur¬ 
 suance of such notice, did not supersede the necessity of 
 proving it by one of the subscribing witnesses.” And 
 Lawrence J. said “ that this had been so ruled by Lord 
 Kenyon in a subsequent case, respecting a will, which 
 the adverse party, in whose hands it was, had notice to 
 produce at the trial, when it appeared that there was a 
 subscribing witness to it; and Lord Kenyon held, that 
 the party calling for it was bound to call one of the sub¬ 
 scribing witnessess to prove the instrument.” Lord Ellen¬ 
 borough, C. J. added, “ that the case of a will shewed 
 strongly the necessity of adhering to the strict rule of 
 proof, and the enormity of the general proposition, that 
 the production of an instrument, by an adverse party, in 
 consequence of a notice, dispensed with the general rule 
 of proving its execution by a subscribing witness; for if 
 a party were fixed with the possession of an instrument 
 affecting his property, however questionable its execution 
 might be, and even though he had impounded it, be¬ 
 cause it was forged, or had been obtained by fraud, that, 
 according to the argument, was to relieve the party at¬ 
 tempting to avail himself of it from calling the subscribing 
 witness.” The court granted a new trial, on payment 
 of costs, on the ground of surprize, and to give the de¬ 
 fendant an opportunity of calling the subscribing witness; 
 
 * but 
 
- 3 b Of the Proofs necessary to establish 
 
 but refused it on the ground that notice to produce an in¬ 
 strument coming out of the hands of the adverse parties, 
 whose instrument it purported to be, was sufficient to 
 establish it without further proof. (i) 
 
 Bllt h was alwa y s required, that the deed should be in 
 custody. custody of the parties interested in the suit, or at least 
 
 ■ ’ ln that of their agents, to render the production of an 
 
 attesting witness unnecessary. A deed in the hands of 
 one who was attorney for the adverse party at the time 
 
 of the execution, but who was not so at the trial, must 
 be regularly proved. (2) 
 
 old. , 11 is unnece ssary to prove the execution of a deed 
 thirty years old (3), although the subscribing witness is 
 When ne. alive (4). Some account is usually given, of where 
 proved- ‘ thas been kept or found, &c. (5); and if there be any 
 
 instruments by erasure ’ or interlineation, it seems prudent to 
 
 prove the execution by the witnesses, if living; or if dead, 
 by proving the hand-writing of one of them at least; 
 and also that of the party, in order to encounter the prel 
 sumption arising from such blemishes. (6) 
 
 Parish card. But it was held sufficient to produce a parish certifi- 
 years old. cate > more than thirty years old, at the hearing of an 
 appeal, and that the parties producing it need not shew 
 from whence it came. (7) 
 
 If the deed appears cancelled, or the seal torn off, that 
 is primd facie evidence of its being no longer in force. 
 
 (1) Gordon v. Secretan, 8 East, 
 548 . 
 
 (2) Leith Post, 1 Espin. N. P. 
 C. 196. 
 
 (3) Bull. L. N. P.255. 
 
 (4) In Marsh Colnett, 2 Esp. 
 Ni. Pri. Cas.66f). 
 
 ( 5 ) Bull. L. N. P. 255. 
 
 (6) Chettle v. P^und, ib. 
 
 (7) Rex -z/. Ryton, 5 Term Rep. 
 * 59 - 
 
 But 
 
a Settlement by Apprenticeship. 539 
 
 But proof may be given, that it was cancelled by ill 
 practice (i , or that the seal was torn off by accident < v 2). 
 
 If the contract be joint, and the seal of one obligor is 
 torn off, it destroys the obligation; but if they be seve¬ 
 rally bound, it continues as to the other, whose seal was 
 not torn off (3}. But if two men be jointly and severally 
 bound, and the seal of one is torn off, this is a discharge 
 of the other; for the manner of the obligation is de¬ 
 stroyed by the act of the obligee. (4) 
 
 If a deed be altered by a stranger in an immaterial 
 point, it is not avoided; but otherwise, if he alter it 
 in one that is material. Also if the party himself alter 
 it in one that is immaterial, it avoids the deed (5). And 
 if one covenant be altered, it destroys it likewise (6). 
 Further, if blanks be left in material places, and filled 
 up afterwards by assent of parties, yet is the obligation 
 void, for it is not the same contract that was sealed and 
 delivered. As if a bond were made to C. with a blank 
 left for his Christian name, and addition, which is after¬ 
 wards filled up. But if A. with a blank left after his 
 name, be bound to N. and if C. is added afterwards as a 
 joint obligor, it does not avoid the bond; for it does not 
 alter the contract of A. who was bound to pay the whole 
 money, before any such addition. (7) 
 
 A deed, although purposely defaced, will (where duly How far 
 proved) be good evidence to establish all the legal conse- 
 quences from the time of delivery until that of can- celled. 
 
 celling. (8) 
 
 (1) Buckrow’s case, Hetl. 138. 
 
 (2) Anon.' Latch. 226. Palm. 403. 
 Per Twisden, J. Clerk -v . Heath, 
 I Mod. 11. 
 
 (3) Bull. L. N. P. 268. cites 5 Co. 
 23. 11 Co. 28. b. Lev. 220. 2 Show. 
 28,29. 
 
 (4) Bull. L. N. P. 268. cites 
 March. 125. 
 
 (5) Bull. L. N. P. 267. 
 
 (6) Bull. L. N. P. 267. cites 11 
 Co. 27. 
 
 (7) lb. 281. n. (8). 
 
 (8) lb. 267. and the cases cited. 
 
 Where 
 
Of the Proofs necessary to establish 
 
 lost. Where an original deed is lost, or destroyed by time 
 or accident (i), or is in the custody of the adverse party, 
 who refuses to produce it (2), “ the counterpart may be 
 read (3); and if there is no counterpart forthcoming, 
 then a copy (4) may be admitted: and even if there 
 should be no copy, there may be parol evidence (5) of the 
 deed.” (6) 
 
 proved. Where the deed is lost or destroyed, it will be neces¬ 
 sary to prove the loss of the original, and that it was a 
 genuine instrument 7). For this purpose, it must be 
 shewn, that inquiry has been made after it (8); and the 
 loss must be proved by the person to whose custody it is 
 traced. In order to establish an apprenticeship in a ques¬ 
 tion of settlement, it was proved that the indenture was 
 of two parts; that one had been destroyed, and the other 
 had come into the hands of A. who was then living, and 
 who upon application being made for it, said she could 
 not find it. But A. was not subpoena’d to give evidence, 
 or produce it; and therefore it was held, that the in- 
 
 1) Doctor Leyfield s case, io Co 
 936. Underhill v. Durham, Freem. 
 503. Meddlicott v . Joyner, 1 Mod. 4. 
 3 Keb. 546. S. C. Whitfield v. 
 Fausset, 1 Vez. 389. Thurston v. 
 Delahay, Bull. L. N. P.354. Pritch¬ 
 ard v. Symonds, ib. Goodier v. 
 Lake, 1 Atk. 446. Lynch v. Clerk, 
 3 Salk’. 154. 
 
 (3) Young n>. Holmes, 1 Str. 70. 
 Clayt. 15. PI. 3. Negus v. Rey- 
 nal, Keb. 33 . Basset *z/. Basset, 1 
 Mod. 366. Anon. Lord Raym. 731. 
 Gilb. Law Evid. 3d Ed. 97. Sturt v. 
 Mellish, 3 AtK. 611. 
 
 (3) Per Grose, J. Rex <0. Middle- 
 zoy, ante, 535. (4), and the cases post. 
 
 (4) Thurston v. Delahay, Bull. 
 L. N. P. 354. So of an order of re¬ 
 moval, Rex v. Kirkby Stephen, Burr. 
 
 S. C. 664. post. vol. ii. chap. 37. sect, 
 vii. 
 
 (5) Sir Edw. Seymour’s case, 10 
 Mod. 8. post. 544. (4). Rex v . Me- 
 theringham, post. 544. (6). 
 
 (6) Per Lord Hardwicke, C. Vil- 
 liers v. Villiers, 3 Atk. 71. 
 
 (7) Goodier v. Lake, 1 Atk. 446.; 
 and see Lord Peterborough v. Mor¬ 
 dant, 1 Mod. 94* But Page and 
 Chappie, J. were of opinion, “ that 
 after length of time, parol proof of 
 indentures shall be sufficient; because 
 in all probability, these indentures 
 may be lost; and indeed they are fre¬ 
 quently burned when delivered up by 
 the master at the end of the term.” 
 Rex v. East Knoyle, Burr. S. C. 151. 
 
 (8) Rex u. St. Sepulchre’s, 3 Bott, 
 363. PI, 391. 
 
 IO 
 
 denture 
 
 
a Settlement by Apprenticeship. 
 
 54* 
 
 denture had not been proved lost or destroyed, so as to 
 let in other evidence of the contents. (i) 
 
 The case stated, that J. H. the pauper’s husband, lived Binding not 
 from the age of five to fifteen in St. Helen’s, with his P rovea - 
 grandfather W. H. who was a basket maker. The mo¬ 
 ther of J. H. gave in evidence, that “ J. H. was bound 
 apprentice to his grandfather by indenture for seven years, 
 which indenture was delivered into the grandfather’s cus¬ 
 tody, as she had been informed by J. H., but she never 
 saw the indenture, and knew nothing of it but from his 
 information; and it was reputed in the family that .T. H. 
 was his apprentice, and he was so described in the grand¬ 
 father’s will.” It further appeared in evidence, that J. H. 
 served his grandfather five years under the said indentures , 
 in St. Helen’s, and was provided for by him during that 
 time in clothes and necessaries. . H. died in 17 3 
 leaving M. H. his widow, and T. H. his son. One B. 
 by order of St. Saviour’s parish, applied in 1748 to T. H. 
 who then lived with his mother in the house where W. H. 
 died, and where his goods and effects were, to know 
 whether he had in custody any indenture of apprentice¬ 
 ship between W. H. and J. H., and T. H. told B. that he 
 could not find it. B. did not inquire who was the exe¬ 
 cutor or representative of W. H., nor did it appear at the 
 sessions that he made any other search to find out the in¬ 
 dentures, or that they were lost, save as aforesaid, and 
 they were not produced. T. H. also gave evidence, that 
 he had drawn indentures of apprenticeship between W. H. 
 and J. H. but that they were not stamped, and that the 
 latter, after the death of W. H. refused to serve his widow 
 and executor on that account. The sessions considering 
 this to be sufficient evidence of a service by apprenticeship 
 in St. Helen’s, confirmed the original order, adjudging 
 
 ' ' ■ v*>’ tfW '-VI • ' I 
 
 (1) Rex v. Castleton, 6 Term Rep. 336. 
 
 his 
 
542 
 
 Of the Proofs necessary to establish 
 
 as family!to be settled there. But the court of king’s 
 
 bench thought that enough was not stated to shew that 
 
 there was a binding within the act, and quashed both 
 orders. (i) 
 
 i- 0SS proved. But where there was but one copy of an agreement to 
 
 . rent a !an(1 -sale colliery as tenants for one year, and it 
 
 was deposited in the hands of the landlord, who upon 
 application made several times before his death by the 
 tenant, refused to produce to him the agreement. The 
 landlord died three years previous to the appeal, which 
 was heard ten years after executing the agreement; and 
 the tenant swore at the hearing, that he did not know 
 m whose custody the agreement now is, or whether it is 
 m being or not. Neither has he made any inquiry for it 
 since the landlord’s death. The court were of opinion, 
 that parol evidence of this instrument had been properly 
 admitted by the sessions. Per Willes J. “ It had ex¬ 
 pired many years; the lessor had been dead three years 
 and in his life had repeatedly refused a sight of it to the 
 pauper, wfrn knew not where it was, or whether it ex- 
 lsted. In this state of things, there was so little prospect 
 o effecting any thing by further pursuit, that I think the 
 evidence was properly admitted.” Buller J. “ Had it 
 been in proof, that the executor of the lessor had been in 
 possession of this instrument, it might have varied the 
 case. After the expiration of the lease, the lessee, the 
 pauper, was entitled to it, in strictness: but he neither 
 had it, nor knew whether it existed; and it is now nine 
 years after its expiration. Under such circumstances, 
 parol evidence was properly resorted to.” (2) 
 
 jji'avedf , U| ’°" a <l uestion of settlement of the wife and children 
 ot a militiaman, it appeared by his examination, taken 
 
 (1) Rex Sr. Helen’s, Burr. S. C. 
 292. Ib. 735. S. C. 
 
 14 
 
 (2) Rex v. North Bedburn, Cald. 
 4J2. 
 
 m 
 
 
a Settlement by Apprenticeship. 
 
 543 
 
 in writing, under the mutiny act, that he went appren¬ 
 tice to J. M. and served five years and an half. The 
 pauper, who was his wife, proved her marriage four 
 years ago, that he ran away from her nine months after¬ 
 wards, and that she had neither seen, heard from, nor 
 known what was become of him since. J. M. the sup¬ 
 posed master, being dead, this was held a reasonable pre¬ 
 sumption of a binding, although some circumstantial evi¬ 
 dence was produced by the other side, to shew that J. M. 
 never had an apprentice; “ for every thing is to be pre¬ 
 sumed in favour of a settlement.” (i) 
 
 It is an universal rule, that the best evidence which can If two 
 
 be given by the party must be produced (2). If two or both must 
 
 more parts are executed therefore, the loss or destruction io S £ toTet 
 
 of all must be proved before a copy can be allowed as in secondary 
 . . evidence. 
 
 evidence. (3) 
 
 In order to let in a copy where the original is in the copy evi- 
 adverse party’s custody, that fact must be shewn. And deace when * 
 proof of delivery to his servant is insufficient without 
 calling the servant (4). But a copy may be read, after 
 proof that the original came into the hands of defendant’s 
 brother, under whom defendant claimed; even though 
 the defendant had sworn, in an answer in chancery, that 
 he had not got the original (5). It is also necessary to 
 prove that he or his attorney has been served with notice 
 to produce it. (6) 
 
 (1) Rex v. St. Michael’s, Bath, 
 2 Bott, 459. PI. 480. The wife 
 gave evidence also of her husband’s 
 declarations, that he had served an ap. 
 prenticeship to‘J. M. The inadmis¬ 
 sibility of which, see ante, 443. But 
 the authority of this case seems ques¬ 
 tioned in Rex v. Clayton Le Moore, 
 5 Term Rep. 704. 
 
 (2) Bull. L. N. P. 293. 
 
 (3) Pritchard ?/. Symonds, Bull. 
 
 L. N. P. 254. and see Rex 1/. Castle- 
 ton, ante, 541. (1). 
 
 (4) Rex v. Pearce, Peake’s Ni. - 
 Pri. Cas. 75. But see Col. Gordon’s 
 case, Leach Cr. Law Cas. 244. 
 
 (5) Bartlett v. Gawler, Bull. L. 
 
 N. P. 254. r 
 
 (6) Attorney General v. Le Mer¬ 
 chant, 2 Term Rep. 20r. (a). Per 
 Buller, J. Rex >v. Watson, ib. Leach’s 
 Cro. Cas. 214. Cates qui tarn v. 
 Winter, 3 Term Rep. 306. 
 
 A coun- 
 
544 
 
 Counter¬ 
 
 part. 
 
 Deed in 
 hands of 
 slighter evi¬ 
 dence re¬ 
 quired. 
 
 Parol evi¬ 
 dence of. 
 
 Stamp pre¬ 
 sumed. 
 
 
 Of the Proofs necessary to establish 
 
 A counterpart of a deed is not properly a duplicate ori¬ 
 ginal, for it is executed only by one party. It is admis¬ 
 sible evidence against any person who signs it, without 
 giving him (i), or his assignee (2), notice to produce the 
 original; for it recites the execution of the original, and 
 in the first case is executed by the party, and in the se¬ 
 cond by one who is bound by his acts, as deriving title 
 under him. But it cannot be read in evidence against 
 a third person, without accounting for the want of the 
 original. (3) 
 
 1 
 
 Slighter evidence is required to establish the contents 
 of a deed, which is proved to be in the hands of the op¬ 
 posite paity, than if it is shewn to be lost or destroyed; 
 for in the former case, if the party is wronged by the evi¬ 
 dence, he may set it right by producing the real instru¬ 
 ment. (4) 
 
 But parol evidence is sufficient, where a deed of inden¬ 
 ture^) or order of removal is lost (6); and where 
 parol evidence is given of an indenture, and a considera¬ 
 tion paid with the apprentice, the sessions should take 
 it for granted that they were stamped, and the duty 
 paid (7): for a fraud is not to be presumed. (8) 
 
 An indenture, executed thirty years before, in the 
 county of Northampton, was proved to have been de- 
 
 (1] Burleigh v. Stubbs, 5 Term 
 Rep. 465. But see Yelverton v. 
 Cornwallis, Noy. 53. 
 
 (a) Roe ex dem. West v. Davis, 
 7 East, 363. 
 
 ( 3 ) Holt, C. J, Anon. Salk. 
 287. 6 iVIod. 225. Sir Wm. Poole’s 
 case, ia Vin. Ab. (* 7 ). PI. 4 . p er 
 Orose, J. Rex v. Middlezoy, ante, 
 535 - 
 
 (4) Sir Edw. Seymour’s case, 10 
 Mod. 8.1 a Vin. (T. b. 65). PI. 22. 
 
 Eccleston <u. Speke, Garth. 80. Young 
 ' v . Holmes, i Str. 70. 
 
 (5) Rex v. Badby, 1 Bott, 547. 
 PI. 746. Rexv. Little Bolton, Cald. 
 367. ante, 482. (1). Rex v. Wantage, 
 j East, 601. 
 
 (6) Rex v. Metheringham, 6 Term 
 Rep. 556. 
 
 (7) Rex v. Badby, ante, (5). 
 
 (8) Rex v. East Knoyle, Burr. 
 S. C. Iji. 
 
 livered 
 
a Settlement by Apprenticeship. 
 
 livered to the apprentice at the expiration of his time, and 
 lost. The parish in which he was settled by service under 
 it, had relieved and otherwise treated him as a parishioner 
 for the last twelve years previous to the appeal. The 
 court was of opinion, that the sessionsj under these cir¬ 
 cumstances, were right in presuming that the indentures 
 had been regularly inrolled and stamped, although the 
 other side proved, by the deputy register and comptroller 
 of the apprentice duties, that it did not appear that any 
 such indenture had been stamped with the premium stamp 
 from 1773 to *805. For the presumption of law is to 
 be favoured; and against this negative evidence by the 
 comptroller, may be set the possibility of an irregularity 
 iii the return made to the office. (1) 
 
 > . 
 
 By 42 Geo. III. c. 46. sect. 1. overseers of the poor, 42 Geo 
 and by sect. 6. all other persons having the like powers, c ’ s 
 are directed to keep a book at the expence of the parish, 
 
 &c. and enter therein the name of every child bound out 
 by them as an apprentice, together with several other 
 particulars, according to a schedule annexed to the act, 
 and this register is to be laid before the justices, who 
 assent to each indenture a$ the time the indenture is laid 
 before them; and each entry in the register, if approved 
 by the justices, is to be signed by them. 
 
 By sect. 3. all persons may inspect this book, and take Sect, j: 
 a copy upon payment of sixpence. 46 And every such 
 book shall be, and be deemed to be, sufficient evidence 
 in all courts of law whatsoever, in proof of the existence 
 of such indentures; and also of the several particulars 
 specified in the said register, respecting such indentures, 
 in case it shall be proved to the satisfaction of such court 
 that the said indentures are lost or have been destroyed.” 
 
 - By sect. 5. where an apprentice is assigned under Sect, $ 
 32 Geo. III. c. 57. 44 the overseer or overseers, party or 
 
 (1) Rex v. Loiii' Buckby, 7 East, 45, 
 
 l , « 
 
 parties 
 
 Vol. r. 
 
 N N 
 
54<S 
 
 Parol evi¬ 
 dence inad¬ 
 missible to 
 contradict a 
 written 
 agreement. 
 
 But ist, 
 rnay explain 
 a latent am¬ 
 biguity. 
 
 Of the Proofs necessary to establish 
 
 parties to the assignment, shall insert the name and 
 residence of the master or mistress to whom such ap¬ 
 prentice shall be assigned or bound over, together with 
 the other particulars, in the book herein directed to be 
 provided and kept by them.” 
 
 It is a general rule, that parol evidence is inadmissible 
 to contradict (i), or substantially to vary a deed, or other 
 written instrument (2), or to explain an ambiguity that 
 is patent, z, e. apparent, on perusal of the instrument it¬ 
 self : such as the total omission of a devisee’s name in a 
 will. (3) 
 
 But it may be given, 1st, To explain a latent ambi- 
 guity, that is, where the uncertainty does not appear 
 upon the face of the writing, but is raised by extrinsic 
 circumstances. For, being let in by parol evidence, the 
 same kind of evidence that introduced the doubt, may be 
 admitted to explain it (4). Such are imperfect and equi¬ 
 vocal descriptions of persons, parties, or places mentioned 
 in the instrument (5). A. devised an estate to her cousin 
 J. C. and had two of that name, father and son : parol 
 evidence was admitted to shew the son was intended (6). 
 So, if the devisee is mentioned by a nickname; or, if a 
 wiong ^name is inserted by mistake (7). So whether 
 parcel or not of the thing demised is matter of evidence. (8) 
 
 (1) Lord Bacon’s Maxims, Reg, 23. 
 P- 99- 
 
 (2) Meres k AP v. Ansell, & Al’ 
 3 Wils. 275 * Clifton v. Walmsley, 
 5 Term Rep. 564. Gunnis & AYv, 
 Erhart, 1 H. Black. 289. Wilson <v. 
 Poulter, 2 Str. 794. Coker v. Guy, 
 % Bos. & Pul. 565. 
 
 (3) Ballis & Church v. Attorney 
 General. Per Hardwicke, C. Bull. 
 L. N. P. 298. post. (6) 
 
 (4) Per Lord Kenyon, C. J. Lord 
 Walpole v. Lord Cholmondeley, 7 
 Term Rep. 138. post. 549. 
 
 (5) Jones v. Newman, 1 Black. 
 
 Rep. 60. 3 Wils. 276. Cheyney’s- 
 
 case, 5 Co. 68. S. P. 
 
 (6) Baylis & Al’ v. the Attorney- 
 General, 2 Atk. 239. 
 
 (7) Beaumont v. Fell, 2 P. Wins. 
 141. See also Thomas v. Thomas, 
 6 Term Rep. 671. 
 
 (8) Doe ex dem. Freeland v. Burt, 
 1 Term Rep. B. R. 70. But tins 
 evidence seems admissible only to ex¬ 
 plain, and not to contradict the de¬ 
 scription which is given by boundaries 
 in a lease. 
 

 a Settlement by Apprenticeship * 
 
 2(1. Parol evidence may be given to ascertain a fact 
 
 which does not contradict, but is collateral to the deed. 
 
 -- 1 
 
 Upon a question of settlement, it appeared, that the 
 pauper had made the following agreement in writing: 
 ts I. J. M. do hereby agree with J. C. to serve me three 
 years to learn the business of a carpenter; the first year, 
 to have one shilling and two pence per day; the second, 
 one shilling and sixpence per day; the third year, one 
 shilling and ten pencewhich agreement was signed by 
 both parties. Parol evidence was admitted to prove, 
 that at the time of signing the agreement, J. C. agreed 
 to give J. M. three guineas, and that he was not to be, 
 and never was employed in any other work than that of 
 a carpenter (i). tc For it was not offered to contradict 
 the written agreement, but to ascertain a fact collateral 
 thereto , in order to explain the intention of the parties , 
 the instrument being in some measure equivocal.” (2) 
 
 In order to save expences, a written agreement was 
 entered into, upon unstamped paper, whereby the pauper 
 agreed to serve four years, at weekly wages, which were 
 to increase annually. Evidence was admitted by the ses¬ 
 sions to shew, that, at the time of signing, it was further 
 agreed by parol, between the pauper and his master, that 
 the pauper should find his own diet and lodging, be his 
 own master on Sundays, and not be paid for the time he 
 should play. The Court of King’s Bench gave no 
 opinion as to the admissibility of the evidence, but 
 they made no objection to its having been so re¬ 
 ceived. (3) 
 
 The pauper claimed a settlement by residence on an 
 estate, acquired by purchase. The consideration ex- 
 
 (1) Rex v. Laindon, 8 Term Rep. (3) Rex v. Highnam, Cald. 49c. 
 
 379. 1 Bott. 710. PI. 1000. 2 Bott. 381. PI. 409. But see 
 
 (2) Per Lawrence, J. ib. Meres Sc. Al’ v. Ansell & Al’, 3 Wils. 
 
 275 * 
 
 N N 2 / pressed 
 
 54 ? 
 
 2d. To ex¬ 
 plain a fact 
 collateral to 
 the deed. 
 
 Parol 
 
 evidence of. 
 a further 
 agreement. 
 
 Parol 
 
 evidence of 
 a further 
 
•548 
 
 considera¬ 
 
 tion. 
 
 To explain 
 the direction 
 of a parish 
 certificate. 
 
 3d. To 
 shew fraud 
 in executing 
 the deed. 
 
 • Ninegenerai 
 rules of evi¬ 
 dence. 
 
 Of the Proofs necessary to establish 
 
 pressed in the deed of conveyance was only 2 81 . Parol 
 evidence was admitted to prove, that 30I. was the con¬ 
 sideration actually paid. (1) 
 
 A parish consisted of several hamlets, having separate 
 churchwardens and overseers. A certificate under 
 8 & 9 W. III. c. 30. was granted by the officers of one 
 hamlet, in which they described themselves as church¬ 
 wardens and overseers of the poor of the parish, and 
 acknowledged the pauper to be settled within the parish. 
 Parol evidence was held admissible to shew, that they 
 were officers of that particular hamlet 5 for it does not 
 contradict, but explains the certificate. (2) 
 
 3d. Parol evidence is also admissible to shew fraud or 
 imposition practised on the party, in executing the in¬ 
 strument, upon the same principle that it is admissible to 
 prove a defective execution. Thus, where it was sought 
 to set aside a second will on the ground of fraud, it was 
 held, that parol evidence might be given of a question 
 asked by the testator, at the time of executing it, whether 
 the contents were the same as those of the former will ? 
 and his being answered in the affirmative, although it was 
 in fact different; for it is evidence, that one paper was 
 obtruded on the testator for another. (3) 
 
 It may not be wholly useless to set forth the nine ge¬ 
 neral rules respecting evidence, as they are laid down by 
 an eminent judge 4), most of which are exemplified in 
 what has been already stated. 
 
 1st Rule. You must give the best evidence that the 
 nature of the thing is capable of: that is, no such evi- 
 
 (i) Rex Si-ammonden, 3 Term (a) Rex Samborn, 3 Term Rep. 
 Rep. 47a. Filmer *z>. Gott, cited 609. 
 
 3 Term Re P . 475. 7 Pro. Par. (3) Doe on the dem. of Small v. 
 
 C ' as ‘ 7 °* Allen, 8 Term .'<ep 147. 
 
 (4) Buller, L. N. P. 393. et seq. 
 
 dence 
 
a Settlement by Apprenticeship . 
 
 dence shall be brought that ex natura rei supposes still 
 greater (i) evidence behind, in the parties’ possession or 
 power. 
 
 2d Rule. No person interested shall be a witness. (.2) 
 
 3d Rule. Hearsay is no evidence, except as to the 
 fact of legitimacy , relationship , pedigrees , rights of com¬ 
 mon, rights of way, and all rights depending upon cus¬ 
 tom, or prescription. (3) 
 
 4th Rule. In all cases where a general character or 
 behaviour is put in issue, evidence of particular facts 
 “ (to affect it)” may be admitted: but not where it comes 
 in collaterally. (4) 
 
 5th Rule. Ambiguitas verborum latens verificatione 
 suppletur, nam quod ex facto oritur ambiguum verifica¬ 
 tione facti tollitur. (5) 
 
 6th Rule. In every issue, the affirmative must be 
 proved, unless where the law presumes the affirmative 
 contained in the issue. (6) 
 
 7th Rule. No evidence need be given of that which 
 is agreed in the pleadings. 
 
 8th Rule. Where special matter cannot be taken ad¬ 
 vantage of by pleading, it may be given in evidence, on 
 the general issue. 
 
 9th Rule. If the substance of the issue is proved, 
 is sufficient. 
 
 1 0 * .v ■ ' v 
 
 (1) i. e. Evidence of an higher or- (4) Ante, 442. 
 
 der, ex. gr. no body shall give evidence (5) Ante, 546. 
 
 by parol of what appears to have been ( 6 ) And then the negative must be 
 reduced into writing. See ante, 463* proved by the party who avers it. 
 
 (a) See ante, 438. - Williams v. East India Company, 
 
 (3) See ante, 443 * 3 ^ ast > 1 * 3 9 7i> 
 
 N N 3 
 
 The 
 
55 ° 
 
 Other re* 
 quisites of 
 the settle¬ 
 ment how 
 proved. 
 
 Of the Proofs necessary to establish a Settlement , Sfc, 
 
 The remaining circumstances, necessary to establish a 
 settlement by apprenticeship may be proved, either by 
 direct testimony, or by inference, as is done in fixing the 
 settlement of an hired servant (i). But if the original 
 master’s consent to service with another, is by regular 
 assignment, that must be proved in the same manner as 
 the original indentures (2); and although it be by a less 
 formal writing, that is likewise subject to the foregoing 
 rules. 
 
 •«. * 
 
 (i) Ante, 432, et seq. (2) Rex v. St. Paul’s Bedford, 
 
 6 Term Rep. 45a. 
 
 1 
 
 l 
 

 ( 5S 1 ) 
 
 J r 
 
 \i 
 
 CHAPTER XXII. 
 
 Of Settlement by serving an Office. 
 
 t 
 
 SECT. L 
 
 Of the Kind of Office. 
 
 nnHIS species of settlement depends upon 3&4W. III. Groun^of 
 c. 11. sect. 6. which enacts, “that if any person, 
 who shall come to inhabit in any town or parish, shall &M. c.n. 
 for himself, or on his own account, execute any public 
 annual office or charge in the said town or parish, during 
 one whole year, then he shall be adjudged and deemed 
 to have a legal settlement in the same, though no such 
 notice in writing be delivered and published, as is lieicoy 
 
 before required.” 
 
 Persons who reside under a certificate, may acquire a Certificates 
 settlement by 9 & 10 W. III. c. 11. if they “ shall exe- 910 
 cute some annual office in such parish, being legally 
 placed in such office.” The words of this act differ from 
 those under which inhabitants unfettered by certificates 
 are enabled to acquire a settlement under 3 & 4 W. III. 
 
 But, although they vary from each other in some par¬ 
 ticulars, the court has inclined to give them the same 
 construction, so far as can be done consistent with the 
 letter of the statutes, for the purpose of placing all pau¬ 
 pers, who are to gain a settlement by the exercise of 
 annual offices, upon the same footing. (1) 
 
 (1) Fittlevvorth r v> Pulborough, % Const. 167* PI* 213* 
 
 xr w A 
 
 
 / 
 
£5 ^ Of Settlement by serving an Office. 
 
 The proper subject, however, of the present chapter, 
 is the settlement given under 3 & 4 W. III. c. 11.; and 
 the decisions upon 9 & 10 W. III. are only referred to 
 here for the purposes of illustrating the former statute, or 
 pointing out the distinctions between them. 
 
 / 
 
 which con- The office which is to confer a. settlement under both 
 fer settle- statutes, for there seems to be no distinction between them 
 rc n! in this respect, must be public, but need not be parochial. 
 
 Not only those of parish clerk (1), sexton (2), and church¬ 
 warden (3), but also a warden for the borough (4), a 
 tithing man (5), petty constable ( 6 ), or borseholder (7), 
 collector of the land-tax (8), and duties on births and 
 burials created by 6& 7 W.III. c. 6. (9), are offices 
 within the act. Likewise the office of bailiff, or aletaster 
 for a borough; which consists in inspecting weights and 
 measures within the borough, and warning the jury to 
 serve at the court leet there (10); that of aletaster of a 
 borough (11); and a hogringer for the parish ; the duty 
 oemg to attend the open commons, to see that all hogs 
 turned thereupon, are rung, and to impound such as are 
 not, the officer receiving one penny for impounding, and 
 sixpence for ringing each hog, being an office o'f great 
 antiquity, and serviceable to the inhabitants of the pa- 
 
 (1) Gatton v. Milwich, 2 Salk. 
 536 . 
 
 0 ) Rex v. Liverpool, 3 Term Rep. 
 118. and the church or chapel in this 
 case was not the parish church. 
 
 (3) Per Lee, J. St. Maurice v. St. 
 Mary Kalendar, 2 Const. 158. pj. 
 203. 
 
 (4) St, Mary v. St. Lawrence in 
 Reading, 10 Mod. 13. 
 
 ( 5 ) Holy Trinity <u . Garsingion, 
 C^s. Sett. & Rem. 72. 
 
 ( 6 ) Rex -v. Hope Mansel. Cald. 
 252. Rex v. All Cannings, Burr. S. C. 
 
 634- See also Rex v. Winterbourn, 
 Burr. S. C. 520. post. 559. (2). 
 
 ( 7 ) Wingham Sellinge, Burr. 
 
 S. C. 223. 2 Str. 1299. 
 
 (8) Rex v. Hammond, 2 Bott, 156, 
 PL 199. 
 
 ( 9 ) Bisham Cook, ib. PI. 200. 
 See also Rex v. Whittlesea, post. 553 
 
 to- 
 
 (10) Rex v. Whitchurch, Burr. 
 S. C. 365. 
 
 (11) Rex v. Bow, 8 Term Rep. 
 445 - 
 
 rish, 
 
553 
 
 Of the Kind of Office, 
 
 rish (i), have been adjudged to confer settlements when 
 duly executed. 
 
 A person was nominated by the rector, and licensed to Office, 
 perform the office of curate in the parish and parish Cume. 
 church by the bishop, who assigned him a yearly stipend, 
 and the person performed the duties for six years. The 
 sessions were of opinion, that there was no service of an 
 annual public office or charge under the act, and the 
 court thought it impossible to argue against this conclu¬ 
 sion. For per Lord Kenyon, C. J. “ The statute was 
 evidently intended to be confined to inferior annual offi¬ 
 cers, such as constables and the like, known to the parish; 
 and though in some instances the construction has been 
 carried further, yet he was not inclined to extend it to 
 cases still further from the contemplation of the legisla¬ 
 ture.’^ 2) 
 
 % 
 
 The 3 W. III. c. 11. uses the terms “ public office or Charge, 
 charge The latter word, coupled as it is in the act with what? 
 office , must be taken to mean something of the same kind, 
 though it may not commonly be known under the name 
 of an office (3), and the office which is to confer a settle¬ 
 ment under this act must be created by the law, and not 
 by the mere act of the parties themselves (4), otherwise 
 every contract with the parishioners, for any purpose, 
 would be a public charge, and it would extend to con¬ 
 tracts with carpenters for keeping the church in repair 
 and the like, which are never considered to be within the 
 meaning of the act. 
 
 The pauper was appointed master of the workhouse of Master of 
 
 workhouse, 
 
 (1) Rex v. Whittlesea, 4 Term (3) Per Lawrence, J. R ex v . 
 
 Rep. 807. Mersham, 7 East, 167. 
 
 0 ) Rex v. Wantage, 2 East, 65. (4) Per Le Blanc, J. ibid. 
 
 See post. 556. 
 
 the 
 
554 Of Settlement by serving an Office . 
 
 the parish of B. at a salary of i 61 ./per aim. (i) Nothing 
 was said, either at the time of his appointment or after¬ 
 wards, as to the time for which he was to hold his situa¬ 
 tion, but he conceived he might at any time be dismissed 
 at a quarter’s notice. He continued master of the work- 
 house four years, residing in B. and was dismissed dur¬ 
 ing the fifth at a quarter’s notice. He gained no settle¬ 
 ment ; for this is clearly no office, but only an employ¬ 
 ment arising out of a contract (2) with the parish. 
 
 But where the session stated in their case that the pau¬ 
 per was legally appointed governor of the workhouse in 
 the parish of J. at an annual salary, and that the said 
 office pf governor is a public annual office; the court 
 were of opinion, that the facts stated precluded discussion 
 how far it was within the act, the sessions having found 
 that the pauper served a public annual office in the pa¬ 
 rish to which he was legally appointed. (3) 
 
 a. Must be 2d. The office, or charge, must be a public institu- 
 
 a<public of ^ oru The exercise of a private employment con¬ 
 fers no settlement, although ever so notorious in the 
 parish. 
 
 Notoriety of “ Every employment in the parish is not equal to ex- 
 
 insufficient^ P ress notice > though it be a matter of notoriety to the 
 parish. It was once made a question, whether shoeing 
 the horses of the lord of the manor was not equal to no¬ 
 tice, but it was determined not to be equivalent (4). If 
 a person is hogringer to certain individuals only (5), he 
 would not thereby gain a settlement: but if he is not 
 
 (1) By virtue of 9 Geo. I. c. 7. yon, C. J. Rex «y. IIminster, 1 East, 
 s. 4 * 83. 
 
 0 ) Rex-y. Mersham, 7 East, 167. (3) Rexi>. Ilminster, 1 East, 83. 
 
 See also the opinion of Lord Ken- (4) Talbury v. Foster, Fol. 123. 
 
 (j) -Ante, 55a. 
 
 merely 
 
5SS 
 
 Of the Kind of Office , 
 
 merely an officer of A. B. or C., but of all the inhabi¬ 
 tants of the parish, he does.” (1) 
 
 The pauper was a school-master, and officiated as »• School- 
 school-master (2) in the parish of Melborneforten years. ^e? n °' 
 During his continuance in the said school, Lady Betty 
 Hastings conveyed by deed, inrolled, certain lands to 
 trustees, and their heirs, to receive and pay the rents and 
 profits inter alia , as follows: Also the yearly sum of 
 1 ol. to the charity school of Melborne, in the county of 
 Derby, to be paid to the vicar there, for the time being,” 
 which sum of iol. the pauper received from the vicar of 
 Melborne aforesaid, from the execution of the said deed, 
 to the time of his death. By the court :— 6i A school¬ 
 master is not an office, but only an employment; and 
 what interest the pauper had in the school, whether for 
 life, or otherwise, or how he was admitted to, or came to 
 the employment, does not appear. The vicar is the 
 person entitled to the 1 ol. per annum , and not chusing 
 to teach the school himself, he paid it to this poor man 
 as his deputy, which could not gain a settlement for any 
 person whatever.” (3) 
 
 On the first of October 1766, the vicarage of the pa- 3 * Curate of 
 rish of Over was sequestered for three years, or till the living^ 6 * 1 2 
 bishop should release the same. On thotwelftli of Oc¬ 
 tober aforesaid, the pauper was ordained deacon, to sup¬ 
 ply the cure during the sequestration. From the fifteenth 
 of October aforesaid, to the fifth of June 1768, he per¬ 
 formed divine service as curate, and resided in the parish 
 of Acton, by exchange, with Mr. M. who paid him 5I. 
 a-year for doing duty there, in addition to his salary of 
 
 (1) Per Lord Kenyon, C. J. Rex 
 %i. Whittlesea, 4 Term Rep. 817. 
 ante, 553. 
 
 (2) In the charity-school j see the 
 report, 1 Wils. 87. 
 
 (3) Rex v. Melborne, Burr. S. C. 
 244.; from whence the case is here 
 stated. 1 Wils. 87. S. C. from which 
 the opinion of the court is given. 
 
 3 si- 
 
55 6 Of Settlement by serving an Office . 
 
 35I. a-year, which was paid him by the churchwardens, 
 who w r ere the sequestrators of Over, until the first of Oc- 
 tober 1769, when the sequestration ended. From June 
 1768, to the first October 1769, the pauper did the 
 duty as curate at Over, and resided there; but it did not 
 appear that he had any licence to the curacy of Acton. 
 Lord Mansfield :— 44 There is no colour for considering 
 this as an annual office: it is no office at all.” Aston J. 
 
 1 * ■> 
 
 — 44 You cannot call it an annual office, when the se¬ 
 questration maybe determined at any time.” v i) 
 
 3. Mode of gd. As it is unnecessary that the office should be of a 
 immaterial parochial nature, it is equally so that the appointment 
 should be in the parishioners. 
 
 Instances. Thus, the collector of duties on births and burials ap¬ 
 pointed by the crown (2); a constable put in by the 
 leet(3); a tithing-man by the steward of aleet(4), or 
 by the jurors (5); the clerk of the parish appointed by 
 the parson (6); a sexton elected at a vestry by the pro¬ 
 prietors of seats in the church or chapel (7), have been 
 held to acquire settlements by serving these offices. 
 
 4. Must be 4th. The office must be annual; that is, the person 
 animal. appointed into it must be liable to execute the duties for 
 a year at leas£ 
 
 Tithing, 
 serving half 
 yearly by 
 custom. 
 
 The sessions found, that by a custom in the hundred 
 of P. in which the parish of C. lies, the occupiers of small 
 tenements serve the office of tithing-men for half a year 
 
 (1) Helsington v. Over, Burr.S.C. (5) Rex v. All Cannings, ante, 3 5J. 
 
 See ante, Rex v. Wantage, 553.(2) (6). 
 
 (2) Bisham v. Cook, ante, 552. (9). (6) Gatton v. Mikvich, ante, 552. 
 
 (3) Per Powel, J. Gatton <u. Mil- (1), and see St. Maurice v. St. Mary 
 
 wich, ante,552. (1). Kallendar, Burr. S. C. 27. post. 557. 
 
 (4) Holy Trinity v. Garsington, (5). " , 
 
 ante, 552. (5). (7) Rex v. Liverpool,ante,477.(2). 
 
 only 
 
557 
 
 Of the Kind of Office* 
 
 only at a time. The pauper served this office for one half 
 year; and after an interval of twenty years, for another: 
 he gained no settlement; for by “ the custom here stated, 
 it is no annual office.” (i) 
 
 rm': 
 
 But it is not necessary that the office should be strictly May be 
 annual, i. e. limited in duration to a year. A freehold lons f than 
 
 ' yearly, 
 
 office for life, as of sexton (2), or parish clerk (3), are 
 public annual offices within the act. 
 
 5th. The office must exist within the parish where the 5. Must 
 party resides (but it may extend beyond it). Thus, a ** 1 ^” tlle 
 constable of a city, consisting of several parishes, the du- 6 . May ex¬ 
 ties of the office being to be executed through all parts of yonc t \f 
 the city, gains a settlement in the parish where he re¬ 
 sides (4). The warden of a borough, exercising the office 
 in the parish where he claimed a settlement, and in some 
 Others, gains a settlement. (5) 
 
 So a person was elected sexton to the church or chapel Sexton of 
 of St. James, which, with part of the church-yard, stands cha P el - 
 in the parish of Walton, and the other part of the church¬ 
 yard in the parish of Liverpool; but no corpse was ever 
 buried in that part of the church-yard in Liverpool parish 
 whilst the pauper executed the office, although they are 
 since. The inhabitants of Liverpool attend the church 
 of St. James in a large proportion, and the sexton resided 
 in Liverpool. Lord Kenyon C. J. u The church-yard 
 lies in two parishes, part of the office of the sexton con¬ 
 sists in digging graves; he gained a settlement in that in 
 which he resided.” (6) 
 
 (1) Cold Ashton v. Woodchester, 
 Burr. S. C. 444. See also Rex v. Bow, 
 8 Term Rep. 445. 
 
 (a) Rex v. Liverpool,ante,55 2 . (2). 
 
 (3) Gatton v. Milwich, ante, 55a. 
 (il, and the opinion of Aston, J. Hel- 
 sington v. Over, ante, 556. (1). 
 
 (4) St. Maurice v. St. Mary Kal- 
 lehdar in Winchester, ante, 557. (6j. 
 
 (5) St. Mary v. St. Lawrence in 
 Reading, ante, 557. (6). 
 
 (6) Rex v. Liverpool,ante, 
 
 The 
 
Of Settlement by serving an Office, 
 
 *]. But need 
 not extend 
 over it. 
 Tithingman 
 in part of 
 parish. 
 
 The office need not extend over the whole parish. 
 
 Thus, a titliing-man, whose tithing did not extend 
 over the entire parish, but comprehended the part wherein 
 he resided (i). The bailiff, or aletaster of a borough, 
 hich borou & h was not one fifth or sixth part of the pa¬ 
 rish, acquired settlements. (2) 
 
 SECT. II. 
 
 Of the Election , Service , and Residence, 
 
 i. Of the 
 election. 
 Must he 
 legally- 
 placed in it. 
 
 The 9 and 10 W. III. c. 11. expressly requires that a 
 person residing under a certificate shall be legally placed 
 in the office to gain a settlement; while the 3 & 4 
 W. III. c. 11. refers merely to the party’s executing the 
 office in fact, and is silent as to the manner in which he 
 may obtain possession. 
 
 Borsholder J. H., while residing under a certificate, was told 
 his appoint- wife, on his return home, <£ that a person, whom 
 
 suffickm. he knew t0 be borsholder of the borough of W. in the 
 parish of W. left a wooden tally for him, at his house, 
 as a token that he J. H. had been chosen, at the court- 
 ieet held for the manor, borsholder for the borough 
 of W.; but she had burnt the tally before his return 
 home. I. W. was not present at the court-leet, nor 
 did he know, of his own knowledge, that he was chosen 
 boisholder; and no record, or presentment of the jury 
 of the leet, or any other evidence of his appointment or 
 election, except what his wife told him, w T as produced at 
 sessions. It appeared, that he never took tire oath of 
 office, but that, within the year after, his wife had told 
 
 (1) Fittleworth v. Pullborough, (a) Rex v. Whitchurch, ante,553. 
 1 Bott, 167. PI. 213. (10) ; and see Wingham v. Sellinge, 
 
 Burr. S. C. 223. 
 
 *3 
 
 him 
 
Of the Election , Service , and Residencei $$$ 
 
 • - i 
 
 him the tally had been left at his house, he executed one 
 warrant of a justice of the peace for the county, directed 
 to the borshoklcr of the borough, and for the year was 
 willing and ready to execute the office. Lee C. J.—“ The 
 act requires a legal placing in an annual office. It is 
 stated, negatively, that there was no presentment, no ad¬ 
 mission, nor swearing; so that here is no foundation for 
 supporting a legal placing. The evidence of being told 
 of the tally is nothing that can merit any regard. The 
 evidence of the legal placing in the office is found in 
 the negative; for as no presentment was offered in 
 evidence, we must take it that there was no presentment 
 at all.” (i) 
 
 Also under 3 & 4 "W. III. c. 11. in a place where Constable 
 it is an immemorial custom to present all constables to s e °ated e ac- 
 serve for the tithing at the manor court-leet, one who cording to 
 was sworn into the office, but never presented at any the custom ’ 
 court-leet, was held not to gain a settlement. (2) 
 
 But it seems, that where swearing into the office is ne- Swearing 
 cessary, and a person who resides under a certificate is ap- j^ 0 
 pointed, and serves his year, he is legally placed therein, sufficient, 
 although not sworn until half the year is expired* (3) 
 
 When the officer is properly appointed, the actual ser- a . 0 f t h e 
 vice performed in the parish seems immaterial under either service - 
 statute (4). It is sufficient, if he is ready to do his duty SrWceffiL 
 When called upon. material* 
 
 But a great difference seems to exist between the sta¬ 
 tutes 3 & 4 W. III. c. 11. and 9 & 10 W. Ill, c. 1 r. 
 as to the service which is to confer a settlement. 
 
 (1) Wingham v. Sellinge, Burr. St. Mary Kallendar in Winchester, 
 S. C. 223. 2 Bott, 158. PI. 203. Fittleworth 
 
 (a) Rex v. Winterbourn, Burr. v. Pullborough, ib. 167. PI. 213. 
 
 S. C. 520. (4) Rex v. Liverpool, under 3 & 4 
 
 (3) Holy Trinity v. Garsington, W. III. ante, 533. (2). 
 ante, 552. (j); and see St. Maurice v. 
 
 Under 
 
Deputy 
 .gains no set¬ 
 tlement. 
 
 Of Settlement by serving an Office. 
 
 Under 3 & 4 W. IIL a deputy gains no settlement 
 y serving the office (i), for the act requires that he shall 
 execute it for himself and on his own account. 
 
 Constable 
 legally 
 placed in of¬ 
 fice, but 
 serving on 
 another’s 
 
 Even where the person is appointed to the office as 
 
 principal, and not as deputy, he gains no settlement if 
 
 e is placed there, and serves for, and on account of 
 another. 
 
 account. 
 
 r. P. whilst he lived in Putney, was, at a court leet, 
 sworn tithing-man for the manor and parish in manner 
 loiiowmg: “ The jurors present to the office of tything- 
 man for the year ensuing M. J. A. who, by leave of the 
 court, puts in his place T. P. and he is sworn.” T. P. 
 3ei ved the office, but J. A. whose turn it was to furnish 
 a thhing-man, paid all his expences attending the execu¬ 
 tion thereof. Lord Mansfield“ The question is, whe¬ 
 ther the pauper served this office for himself, and on his 
 own account, or not ? The question is not, how he was 
 presented to it, but how he served it. M. J. A. was the 
 person in turn to furnish a tything-man, and he, by leave 
 of the court, puts this man, a day-labourer, in In's place, 
 and paid him all the expences attending the execution of 
 the office, and A. received the benefit of it, by being dis¬ 
 charged of his obligation to serve in this, his turn, there¬ 
 fore he served for A. It is true, that A. was not liable 
 for his misconduct, for he was not deputy to A., but yet 
 it is dear that he executed the office for A., and not for 
 himself, and on his own account, according to the mean¬ 
 ing of the act of parliament.” Aston J.—« This man 
 appeared to have served for A. and not to have executed 
 the office for himself, and on his own account. Though 
 he was indeed so far the legal officer, that he might have 
 had a good defence upon an information in nature of a 
 
 (1) Lothsome v. Sheriffhales, 19 
 Vin. Abr. 379; Per Lee, J. St. 
 
 Maurice St. Mary Kallendar, 
 Burr, S. C. 34. 
 
 quo 
 
Of the Election , Service, and Residence . 
 
 quo warranto, brought against him for executing the of¬ 
 fice, yet it don’t follow that he executed it for himself, 
 and on his own account, within the intent and meaning 
 of this act.” (i) 
 
 But on the other hand, where a certificate man Service by 
 serves an office by deputy, he gains a settlement under de P ut >'* 
 
 9 & io W. III. c. ii. (2). A certificated person was 
 chosen, and sworn in petty constable of the parish certified 
 to, after being sworn in he declared he would not serve 
 it himself, and he employed a deputy to serve it for him, 
 to whom he gave half a guinea for his trouble. He was 
 held thereby to gain a settlement, so as to enable his 
 apprentice to acquire one by service with him in that 
 parish. (3) 
 
 The service must be for one whole year. The pauper service 
 was chosen a tithing-mau at a court-leet, and continued ™ ust be 
 to execute his office for five months, when becoming year, 
 chargeable to the parish, an order of removal was made 
 and executed, and the Court were of opinion, that he was 
 well removed, and gained no settlement. (4) 
 
 The pauper, at a court-leet holden by adjournment 
 for the manor and borough of C. on 1 6th November' 1792, 
 was appointed to the office of aletaster of the borough, 
 and duly sworn, according to the custom of the manor. 
 
 (1) Rex v. AU Cannings, Burr. 
 S. C. 634. ante, 556. (5). 
 
 (a) Per Lee, J. St. Maurice v. St. 
 Mary Kallendar, Burr. S. C. 34. 
 
 (3) Rex v. Hope Mansell, Cald. 
 35 a. But a deputy is, in several in¬ 
 stances, an independant officer. 
 
 (4) Fittleworth v. Pullborough, 
 Burr. S. C. 338. The pauper here 
 resided under a certificate, by virtu* 
 
 TOL. X. » 
 
 of 8 Sc 9 W. III. c. 30. and 9 & 10 
 W. III. c. 11. But Lee, C. J. ob¬ 
 serves ; “ the 3 & 4 W. & M. differs 
 from this act; yet it would be odd to 
 place him (the certificated pauper) on 
 a different footing from other paupers 
 who are to gain settlements by the 
 exercising annual offices, and that is, 
 for, and during a year,” 
 
 O 
 
 to 
 
Of Settlement; by sewing an Office . 
 
 to execute the said office for one year then next ensuing* 
 ov until lie should be lawfully discharged from the same. 
 He accordingly entered upon and executed such office, 
 until i st November 1793? when at a similar court holden 
 by adjournment, a new officer was appointed in his stead, 
 and sworn in the same manner. He gained no settle¬ 
 ment, for the words of 3 W. III. c. 11. s. 6. are to be 
 construed according to their plain and obvious meaning; 
 and he did not serve 66 a whole year.” (1) 
 
 3. Of the It seems as if there must be a residence of forty days, 
 
 40 days re- ^ least, in the parish in which the office is executed (2) 
 
 srdence. 7 r i r* 1 
 
 and the settlement claimed. No case has come betore the 
 court upon this subject, although some may be conceived 
 which might give rise to discussion. It is undetermined, 
 therefore, whether a residence of forty days is sufficient, 
 or whether the party should reside for the whole year ? 
 If the former is sufficient, which a residence at different 
 periods will connect? Or, supposing the pauper to reside 
 the first forty days after his appointment in A. where his 
 office or charge is to be executed, and then to remove 
 into some other parish, but still discharging the duties of 
 liis office in A. during the remainder of his year, whether 
 he would thereby gain a settlement in A. ? 
 
 (1) Rex <y. Bow, i Term Rep. 
 24 5 - 
 
 (2) In St. Maurice v. St. Mary 
 Kallender, as reported, 2 Const. 158. 
 PI. 213. Lord Hardwicke is made to 
 say, “ that the court construed the 
 words in the said town or parish , not 
 as importing an office in the town or 
 parish, but more largely any office 
 while the person remains in the same 
 town or parish.” 
 
 The report of the case, in Burr. S. 
 C. 27. has no such observation; and 
 the words of both statutes require, 
 
 that he shall execute the office in such, 
 parish. See the opinion of Lee, C. J r ' 
 Fittleworth <v. Pulborough, 2 Const. 
 172. PI. 226. Where one was ap¬ 
 pointed sexton by the proprietors of a 
 church or chapel, which, with that 
 part of the church-yard in which bu¬ 
 rials were had, was situate in the pa¬ 
 rish of W., and another part of ths 
 church-yard was situated in L. where 
 the pauper resided, he gained a settle¬ 
 ment inL. Rex ^’.Liverpool, 3 Term 
 Rep. 118. ante, 559. (4)- . 
 
 3 
 
 If 
 
X .. 
 
 Of the Proofs necessary to establish this Settlement . 
 
 If any analogy exists between this species of settlement, 
 and those by apprenticeship, hiring and service, or resi¬ 
 dence upon a rented tenement of i ol. per annum , or upon 
 a man’s own estate, the points are decided as to them. 
 
 SECT. III. 
 
 Of the Proofs necessary to establish this Settlement . 
 
 It will be necessary to prove, ist,that the office is an- Proofi 
 nual, of a public nature, and to be executed in the parish. ecssary. 
 
 2d, That the party was placed therein (i). 3d, That 
 
 he served for the whole year. 4th,* The residence. 
 
 T* „ • / * * ' 1 *• V ^ r 
 
 1st, As to the kind of office. Some are known to the 1. Natur® 
 law, so as to make it unnecessary to give evidence of °® ce ' 
 their nature and duties. Such is that of constable, law offiem. 
 which exists by common law; collector of the land-tax, 
 which is created by statute. (2) 
 
 But offices of a local nature either depend, 1st, upon 2. of a lo- 
 charter or grant, which should be produced, if in exist- cal nature * 
 ence; or, 2d, upon immemorial usage, when it may be 
 shown by the courts rolls of the manor (3), or an ancient 
 customary of the place (4), or by entries in the parish 
 books (5), or by persons who are acquainted with the du¬ 
 ties, from having seen them claimed and exercised. 
 
 (1) Qua:reunder3&4W.III.c.ir. (3) Ratcliffs Chaplin, 4 Leon, 
 
 see ante, 560. 242 . 
 
 (2) See Bisham Cook, 2 Const. (4) Denn v. Spray, 1 Term Rep. 
 
 167. PI. 210. The collector of duties 466. Ecuvin -v. Thomas, 1 Vei n. 489. 
 on births and burials appointed by (5) Stead Heaton. 4 Term 
 6 Sc 7 W. Ill, c. 6. Rep. 669. 
 
 0 0 2 
 
 2 d, It 
 
5/54 \v Of Settlement by serving an Office* 
 
 »/ Th« 2d, It remains to be decided, whether, ia appeals re- 
 
 w 5 U * specting settlements of this kind, the pauper should prove 
 a regular title to the office, as he must do, if it be ques¬ 
 tioned in an information in the nature of a quo war- 
 ranto ; or whether, acting in the office, does not confer a 
 settlement under 3 & 4 W. & M. c. 11* on at least 
 amount to prima facie evidence of a legal appointment (1}, 
 not only under that act, but under 9 & 10 W.III. which 
 expressly requires, that the person should be legally placed 
 in the office to obtain one. 
 
 » . . '* . f . , . /y ”, ’ f k 
 
 In the case of a certificated person, where a presentment 
 of the jury of the leet was necessary to the appointnfent 
 of a borsholder, and no record or presentment was offered 
 in evidence, Lee, C. J. observed, “ as no presentment 
 teas offered in evidence, we must take it, that there .was 
 no presentment at all(2);” and upon an indictment 
 against churchwardens for refusing to join with the over¬ 
 seers in making a poor rate, Pratt, C. J. held, that an 
 appointment of the overseers, under the hands and seals 
 of two justices, must be produced; for the court is to 
 judge whether it be sufficient. (3) 
 
 ^ r • • •• »> f o ryy .* * 'v *r > 
 
 Proof of lo- Such proof seems necessary in all cases where the mode 
 
 cal custom. a pp 0 j n tnient depends upon local custom, and although 
 
 it may be unnecessary in others, it is at least the safest 
 paode of proceeding to adduce it. 
 
 Copies of Wherever the appointment depends upon a record, or 
 publicin- 3nd wr ltt en instrument, either the originator an examined 
 struments. sworn copy, should be produced in evidence. (4) 
 
 (1) Seethe opinion of Buljer, J. of their having acted, would have been 
 
 Berryman v. Wise, ante 535. sufficient, supra, n. (1). 
 
 (2) Wingham v. Sellings, Burr. (4) For the law respecting copies 
 
 S,C. 223. (2). under seal, which have little, if any 
 
 (3) Reiv. Arnold, x Sir. 101. If reference to the present subject, see 
 the overseers had been indicted,proof Bull. JL. N.P.226. 
 
 The 
 
Of the Proofs necessary to establish this Settlement. 
 
 5*1 
 
 -91 t 
 
 
 1 The principle which regulates the admission of copies Wteo«vii 
 of public instruments is thus laid down by Lord Holt, 
 
 C* — 44 That wherever the original is of a public na¬ 
 ture, and would be evidence, if produced, an immediate 
 sworn copy thereof will be evidence (1)because, since 
 these matters lie for the public satifaction, every man 
 has a right to their evidence, and in several places they 
 cannot be at the same time. (2) 
 
 ' Gl ^ o V jfS S. J. .A- V 
 
 Where a sworn copy is given in evidence, it must con- What 
 jn.tain a copy of the whole instrument, for the precedent or C0 F ied - 
 subsequent words or sentence may vary the sense. (3) 
 
 i>5r^5o2AW JnexniaS'eS'i;. >• -;•/ JrtT'v 
 
 In order to let in the evidence of a copy, it must be How 
 proved on oath to have been duly examined. This is P rovcd * 
 done by some person, usually the officer, who has the 
 custody of the instrument, reading it over while the wit¬ 
 ness peruses the copy, and afterwards by the officer read¬ 
 ing the copy while the witness holds the original, and 
 observes whether it corresponds therewith. 
 
 v> 
 
 Circumstances attending the appointment which de¬ 
 pend not upon custom, or written documents; such ae 
 
 .-V .»* , • ~ * — 
 
 the swearing in of the officer, &c. are to be proved by 
 oral testimony. (4) 
 
 ijiys 
 
 m 
 
 
 tl 
 
 .. 
 
 r-’ 
 
 w 1*4 
 
 (1) Lynch <v. Clarke, 3 Salk. 154. 
 
 Doug* 593 - Bull, L. N. P. 228. 
 ib. 247. 12 Vin. Abr, (A. b. 26) 
 
 Tiilard v. Shebbeare, 1 Wils. 366. 
 Birt nj. Barlow, Doug. 171. Rex v. 
 Lprd George Gprdon, ib. 593. 
 
 (2) Gilh. Law of livid. 3d Ed. 48- 
 
 As tp when copies of private instru¬ 
 ments are admissible in evidence, $ee 
 wite, J43. tt seip. . 
 
 (3) Bulk L. N. P. 228. 3 Inst. 173. 
 But this only means, that an entire 
 copy should be given of what relates to 
 the subject-matter; ex. gr. If an 
 entry in the manor books, or copyhold 
 rolls is relied upon, a complete copy of 
 that particular entry must be .proved, 
 and not of the entire bool^ or rolls, 
 see Bull.L. N. P. 228. 
 
 {4} Aute, Vpl. i. <536. et,seq. 
 
 •“■'’This 
 
 SrldlKf 
 
f 
 
 5 6 ^ ' Of Settlement by sewing an Office . 
 
 seiving ap- This proof, as also that of serving the office and resi- 
 pdntment. dence, depend upon the same rules as the establishment 
 
 dence. an y °^ ler fact necessary to any other kind of settle¬ 
 
 ment, (i) 
 
 (i) Ante, 432. rb. 530. 
 
 ' * 1 / 
 
 f 
 
 fA // - r# 
 
 '•v'i ■; ;)/ j J .y 
 
 END OF THE FIRST VOLUME. 
 
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