several persons having right of common upon a waste, and for his services he was allowed the exclusive enjoyment of a cottage, and a piece of meadow land of the annual value of 207.: the court held that he thereby gained a settlement; paying for these tenements with his services, was the same as paying with money; if instead of these, the commoners had given him money, he might have rented these or other tenements with it (s). So, where the owner of a flax mill let cottages to those persons whose children worked at the mill; and among others, the owner let a cottage to a man, six of whose children worked at the mill, at 2s. a week, to be deducted from the children's wages; the father worked as a husbandman elsewhere, and never was a servant to the owner of the mill, and after he left the cottage, one of his children still continued to work at the mill: the court, after some hesitation, held that this was a tenement within the meaning of the statute, and that the party gained a settlement (†).

But where the occupant of the tenement is a servant to the owner of it, and the occupation is merely ancillary to the service of the occupant or any of his family, or, in other words, where the tenement is given to him by his master merely for the convenience of his attending to his master's business, and there is not in fact or in law any relation of landlord and tenant between them: there it will not be deemed a settling in a tenement within the meaning of the statute, and the servant will not thereby gain a settlement. And, therefore, where a gentleman hired a gardener, who was to take care of his garden, vines, hothouses, &c., for which he was to have a certain portion of the profits of the garden, and a cottage to reside in; and the question was, whether he gained a settlement by his residence in the cottage: the court held that he did not, as his residence there was merely as servant, not as tenant (u). So, where a man hired with a farmer as his shepherd, and he was to have a house and garden rent free, 7s. a week, and other privileges, as wages: the court held that he gained no settlement by his residence in the cottage; he held it as a servant merely, and not as tenant, and therefore could not be said to hold it as a tenement within the meaning of the statute (v). So, where a man hired as servant to a farmer at 201. wages, and he was to have a house and garden, and other privileges; the house was necessary to the performance of his services, but if that were not given to him, he would have had more wages: the court held that he gained no settlement by residence in the house; it was given to him by his

(8) R. v. Melkridge, 1 T. R. 598. (t) R. v. Bishopton, MS. H. 1839; 1. & El, 824.

(u) R. v. Shipdam, 3 D. & R. 384. (v) R. v. Bardwell, 2 B. & C. 161.

master for the convenience of both, and, as it were, thrown into the bargain in cumulation of wages, and the occupation of it was nothing more than the occupation of the master by the servant; it was like the case of a gentleman allowing his coachman to occupy the rooms over his stable, in which case it could not be pretended that the coachman could gain a settlement (w). So, where a labourer in the employ of the board of ordnance, having rented a house at the annual rent of 77., the board purchased it, applied part of it to other purposes, and allowed the labourer to live in the remaining part, at a rent of 28. a week, to be deducted from his wages; he also at the same time rented a shop, and the two tenements together would be of the yearly value of 107.; being afterwards dismissed from the service, he, after some hesitation, delivered up the key of the house to the servant who succeeded him : the court held that he gained no settlement; the relation of landlord and tenant did not subsist, the party being allowed to occupy as servant merely, for the convenient performance of his service (r). Also, where in 1817, the pauper hired with one Dawson for 12s. a week, to take care of his stock upon the marshes of St. Osyth; he was also to have the keep of a cow, four sheep, and two pigs, upon the marshes, and to be allowed to occupy a cottage there rent free, which he was not to be obliged to leave, without a notice to quit at Michaelmas; the keep of the cow, &c. was not of the value of 10l. a year, and the sessions being of opinion that he occupied the house as servant only, and not as tenant, held that he did not thereby gain a settlement; and the court confirmed their order, as they could not say their decision was wrong (y).

Proof of the holding.] In cases of renting a tenement under the stat. 13 & 14 C. 2, c. 12, s. 1, in order to prove the holding, it will be sufficient to prove the occupation and the yearly value, even although the party have holden under a written agreement; and it is not necessary to produce or prove such agreement (z). But where it was sought to prove by parol evidence the rent that the party paid for a tenement in order to show its annual value, and it appeared that the tenement had been holden under a written agreement, which was not stamped, and was afterwards lost: the court held that it could not be done; for it was attempting to give parol evidence of the contents of a written instrument, which, if forthcoming, could not be given in evidence for want of a

(w) R. v. Kelstern, 5 M. & S. 136. (x) R. v. Cheshunt, 1 B. & A. 473.

(y) R. v. Snape, 6 Ad. & El. 278. (z) R. v. Holy Trinity, Hull, 7 B. & C. 611.

stamp (a). And where the tenement has been rented since the passing of stat. 59 G. 3, c. 50, under a lease or agreement in writing, such lease or agreement must be proved in the regular way; because there the terms of the holding are material and necessary to be proved. Vide post.

4. Who may gain the Settlement.

The tenant, 592.

Partners or joint-tenants,

592. Certificate-men, 593.

Foreigners, 594.

Soldiers, 594.
Prisoners, 594.
Exceptions by statute, 595.

The tenant.] The settlement is gained by the person who is the actual tenant of the tenement, no matter by whom the rent is to be paid. And, therefore, where a man took a house, with certain rights of common attached to it, at a yearly rent of 117., on condition that one Porter should become security for the rent: Porter accordingly became security, and then took part of the premises from the tenant, at a rent of 57: the court held that the tenant thereby gained a settlement; he alone was tenant, and subject to all liabilities as such, and the tenement was of the yearly value of 107., which was all the statute required (b). So, where a farmer, being in difficulties, assigned his farm and stock to one Page for the benefit of his creditors; and Page, without any authority from the farmer, hired a house at Halesworth, in which the farmer and his family resided two years, Page paying the rent, &c., and upon Page's demanding possession, the farmer immediately gave it up to him: the court held that the farmer thereby gained a settlement in Halesworth by his occupation of this house; he had the sole occupation of it; and whether Page took it for him as his agent, or underlet it to him at will, was immaterial, as in either case he would gain a settlement (e).

Partners, or joint-tenants.] Where John and Thomas Yates, brothers, agreed to be joint proprietors of a farm and the stock upon it, each contributing his share of the capital, &c.; the farm was taken by Thomas alone, but each was equally liable, as between themselves, to the rent and outgoings, and entitled to a moiety of the profits: the court held that John, as well as Thomas, thereby gained a settlement; John was either a joint-tenant with him, or undertenant to

(a) R. v. Castle Morton, 3 B. & A. 588.

(b) R. v. Hooe, 4 East, 362.
(c) R. v. Chediston, 4 B. & C. 230.

him of a moiety, and in either case gained a settlement (d). So, where a man and his father-in-law jointly rented a farm in Duns Tew; the father then took a farm in his own name at Little Tew; but both removed to it, and stocked and managed it jointly, and resided upon it four years: the court held that the son-in-law, as well as the father-in-law, thereby gained a settlement in Little Tew; although he did not join with his father-in-law in taking the farm from the landlord, he was partner with him, and must be deemed his tenant-atwill of a moiety of the farm (e). And on the other hand, where a man took a house for 31. a year, and a piece of land for 81. a year in his own name only, and upon his sole credit; but his mother-in-law lived with him, and the stock upon the land and in the house belonged partly to one, partly to the other, and was from time to time disposed of by either of them indiscriminately: the court held that the son-in-law thereby gained a settlement; he alone was tenant of the tenement, the mother-in-law being in the nature of an undertenant to him (f). But where the taking was jointly by two, at a rent of 147. a year, each paying a moiety of the rent, and being entitled to a moiety of the produce: the court held that neither of them gained a settlement; for each of them could be said to have occupied a tenement of only 77. a year (g). So, where the pauper rented a tenement of the yearly value of 87.; and at the same time jointly rented with another, a farm of the yearly value of 3l. 15s., each to have a moiety of the corn and hay, but the pauper was to have the whole of the farm after the crops were removed, and for which he was to pay his partner 4s. a year: the court held that this 4s. formed no part of the rent: and the rent paid by the pauper, namely, 8., and the moiety of 37. 15s., being less than 107., he gained no settlement (h). So, where A. applied to take land, at a rent of 177. a year, but the landlord objected to let it to him unless B. joined with him, and they should take it as jointtenants; B. accordingly joined in the taking, but A. alone took possession of the land, and occupied it for five years, without any benefit to B., or interference upon his part: the court held that he gained no settlement (i).

Certificate-men.] A certificate-man may gain a settlement by renting a tenement of the annual value of 10l.; (see post,

(d) R. v. Seamer, 6 T. R. 554. (e) R. v. Duns Ter, Burr. S. C. 398.

(f) Amre v. Newnham, Burr. S. C. 756.

(g) Croft v. Gainsford, 2 Bott,

129. S. P. R. v. Morden, Burr. S. C. 311.

(h) R. v. Kniveton, Burr. S. C. 499.

(i) R. v. Aberdaron, 1 Q. B. 671; 10 Law J. 95, m.; MS. E.

in the 10th chapter of this Part;) for by stat. 9 & 10 W. 3, c. 11, s. 1, no person who shall come into any parish with a certificate, shall be adjudged to have procured a legal settle ment in such parish by any act whatever, unless he shall really and bona fide take a lease of a tenement of the value of 10%, or shall execute some annual office in such parish, being legally placed in such office. The cases which have been decided upon this statute, shall be given hereafter, when we come to consider the settlement of certificate-men.

Foreigners.] A foreigner may gain a settlement by rent ing a tenement, at least, if he be an alien amy. And, there fore, where a German, married to an English woman, took a house at Seaford of above the yearly value of 107., and occu pied it two years: the court held that he thereby gained a settlement; for although by stat. 32 H. 8, c. 16, he could not take a lease of a house or shop, yet he might lawfully occupy one, and thereby gain a settlement (g).

Soldiers.] Where a sergeant in a militia regiment, whilst in barracks, took a tenement of the annual value of 10%, and resided in it for more than forty days: the court held that he thereby gained a settlement; it is only in the case of hiring and service that a soldier cannot gain a settlement (4). But where a soldier deserted, and his wife afterwards, without his knowledge, took two tenements of the yearly value of 101. 5.; and shortly afterwards her husband came to her, and resided concealed in one of the tenements seven weeks: the court held that he gained no settlement by renting these tenements; they were not taken by him, nor by his wife as his agent, for he knew nothing about the tenement until he came to conceal himself there; and when he came, it was not animo residendi, but as a fugitive (i).

Prisoners.] Where a man, in the year 1732, whilst a prisoner in the rules of the Fleet, took a house within the rules, in the parish of St. Martin's, Ludgate, of above the annual value of 107.: the court held that he thereby gained a settlement (k). But by stat. 23 G. 3, c. 23, s. 1, no person who is a prisoner in the King's Bench prison or the rules thereof, shall gain a settlement in the parish of St. George the Martyr, in the borough of Southwark, by renting any house, lodging

(g) R. v. Eastbourne, 4 East, 103. (h) R. v. Brighthelmstone, 1 B. & A. 270.

(i) R. v. Ashton-under-Lyne, 4 M. & S. 357.

(k) St. Margaret's, Westminster, v. St. Martin's, Ludgate, 2 Str. 924.