DIXON

t.

FAWCUS.

1861. Jun. 23.

1861. Jan. 23.

[555]

allegation, however, that the defendant had fraudulently sold the labels; the observations, therefore, of the LORD CHANCELLOR must be taken as an expression of his opinion that the defendant, though he had sold them innocently, would have been responsible if it had been proved that the sale was an infringement of the plaintiff's right. Upon this ground, therefore, our judgment must be for the now plaintiff. But I also agree with my brother CROMPTON, that, if the natural consequence of the defendant's acts was (as it evidently was) to plunge the plaintiff into a Chancery suit, and thereby to incur costs and expenses, the plaintiff has a good cause of action against the defendant, to recover those costs and expenses as damages, whatever the result of the suit in question might have been.

Judgment for the plaintiff.

DAVIES . BARON BERWICK.

(3 El. & El. 549–554; S. C. 30 L. J. M. C. 84; 7 Jur. N. S. 410; 3 L. T. N. S. 697; 9 W. R. 334.)

[Conviction of servant in husbandry for misconduct in the execution of his contract, under stat. 4 Geo. IV. c. 34, s. 3, repealed 38 & 39 Vict. c. 86, s. 17.]

REG. v. OVERSEERS OF TIVERTON.

(3 El. & El. 555 - 561; S. C. 30 L. J. M. C. 79; 7 Jur. N. S. 209; 3 L. T. N. S. 696.)

By the practice of a Wesleyan congregation, certain of its members were appointed stewards for a given circuit, and were called circuit stewards. One of their duties was to take and furnish houses for their ministers officiating within the circuit. The rents of such houses were sometimes paid by the circuit stewards, and sometimes by the ministers; if by the ministers, the stewards repaid them the amount, together with the amount of the rates and taxes in respect of the houses, which were paid by the ministers in the first instance. It was the custom of the congregation to appoint a minister to officiate in a given place for one year certain, during which he could not be removed; and no minister officiated for more than three years in the same place. At Michaelmas, 1832, the circuit stewards took and furnished a house at C., a place in the circuit, for a year certain, at the rent of 201., as a residence for W., who was then appointed to be minister at C. W. immediately took possession and occupied the house, as minister till Michaelmas, 1835. During the three years of his occupation, W. paid the annual rent of 207. for the house to the landlord: he was also in each of those years assessed to and paid the poor rates for C. Both rent and poor rates, however, were repaid to him by the circuit.

stewards:

Held, that W. did not gain a settlement in C. by renting a tenement, or by assessment to and payment of rates and taxes, under stats. 6 Geo. IV. c. 57, s. 2; 1 Will. IV. c. 18, s. 1; and 4 & 5 Will. IV. c. 76, s. 66.

CASE stated by consent, and by Judge's order, under stat. 12 & 13 Vict. c. 45, s. 11, for the opinion of this Court, upon an appeal to the Gloucestershire Quarter Sessions for Michaelmas, 1860, against an order of two justices, adjudicating the

settlement of Benjamin Holmes Worth, a pauper lunatic, to be in the parish of Tiverton, in the county of Devon, and also ordering the payment by that parish of certain moneys expended in and about his maintenance, &c., and of the expense of his future maintenance.

The said pauper lunatic was the legitimate son of William Worth, a Wesleyan minister, and of Susan Worth. The said William Worth was born in the parish of Tiverton, in or about the month of January, 1781. The respondents alleged that the pauper lunatic had no other settlement than this the birth settlement of his father; while the appellants relied on a subsequent settlement gained by the father in the parish of Carisbrook, in the Isle of Wight. From the year 1832 to the year 1835, both inclusive, the said William Worth was a Wesleyan minister, and the practice of the Wesleyan congregation, of which he was a minister, during that period, was as follows. Certain members of the congregation were appointed stewards for a circuit comprised within a given distance, and were called circuit stewards; and one of the duties of such circuit stewards was to take houses within their circuit as residences for their ministers officiating within such circuit; and to furnish such houses with furniture fit and proper for such residences. Sometimes the circuit stewards paid the rents of such houses, and sometimes the ministers, but in the latter case the amount of the rent so paid by the ministers was repaid to them by the circuit stewards; in like manner the amount of the rates and taxes paid by the minister in respect of such house was repaid to the said minister by the said circuit stewards. In the year 1832, the circuit stewards of the circuit within which the parish of Carisbrook, in the county of Southampton, in the Isle of Wight, was situate, in conformity with the aforesaid practice, bonâ fide took and rented a tenement situated in the said parish of Carisbrook, such tenement consisting of a separate and distinct dwellinghouse and garden, as a residence for their minister officiating in *that part of the said circuit; and furnished the said dwellinghouse with furniture fit and proper for such residence. And the said circuit stewards bonâ fide took and rented the said tenement, so situate in the said parish of Carisbrook, such tenement consisting of a separate and distinct dwelling-house and garden, for the term of one whole year from 29th September, 1832, at and for the rent of 201. a year, that being also the yearly value of the said tenement, as a residence for their minister officiating in that part of the said circuit; and on the said 29th September, 1832, the said tenement having been so as aforesaid taken and rented by the said stewards, the said William Worth, having

ᎡᎬᏩ .

v.

OVERSEERS

OF TIVERTON.

[ 556 ]

[ *557 ]

been appointed to officiate as such minister in that part of the said circuit, and continuing to be such minister from that time until and upon 29th September, 1835, with the consent of the said circuit stewards, as such minister, came to reside in and occupy, and as such minister resided in and occupied, the said tenement, the said dwelling-house being so furnished as aforesaid, under the said yearly taking for the term of one whole year (that is to say), upon and from the said 29th September, 1832, until and upon the 29th September, 1833, and so on afterwards on the same terms, from the said 29th September, 1833, until and upon the 29th September, 1835. The said William Worth actually paid the said rent of 201. for the said tenement, to the landlord thereof, for each of the said years during which he so resided in and occupied the said tenement, but the amount of such rent was afterwards repaid to him by the said circuit stewards.

The said William Worth, in and during each of the said years in which he so resided in and occupied the said tenement, was assessed to the poor rates for the *said parish of Carisbrook in respect of the said tenement, and paid such rates, and resided in and occupied such tenement for forty days and upwards, in each of the said years, after payment of the said rates. The amount so paid by him for the said rates was repaid to him by the said circuit stewards in conformity with the practice aforesaid. The said William Worth was appointed to officiate as minister at Carisbrook, in conformity with the custom of the Wesleyans, which custom is to appoint their ministers to officiate in a given place for one year certain. The appointment is absolute. During the year a minister cannot be removed from the place of his appointment. It is also the custom that no minister shall officiate longer than three years in any one place.

The questions for the opinion of the Court were. First, did the pauper lunatic's father, William Worth, acquire a settlement in the said parish of Carisbrook, by renting the said tenement under the circumstances set forth? Secondly, did he acquire a settlement in the said parish of Carisbrook, by being assessed to and paying the poor rates for the said parish, under the circumstances set forth?

If the decision of the Court should be in the affirmative on either of these questions, judgment was to be entered for the appellants, that the said order of the said justices be quashed at the Quarter Sessions for the county of Gloucester next or next but one after such decision was given. If the decision of the Court should be in the negative on both of these questions, judgment in like manner was to be entered for the respondents,

that the said order be affirmed; with such costs, in either event, as this Court should adjudge.

s. 1.

Sawyer, for the respondents:

*

Both questions must be answered in the negative. First, the pauper lunatic's father did not acquire a settlement in Carisbrook by renting a tenement. The acquisition of such a settlement is regulated by stats. 6 Geo. IV. c. 57, s. 2, and 1 Will. IV. c. 18, *In the present case, the pauper's father, though he actually occupied the house in Carisbrook, was not the person who hired it, it having been hired by the circuit stewards. The same objection applies to his payment of the rent; if, indeed, he can be said to have paid it, having been repaid the amount by the stewards. The relation of landlord and *tenant never existed between him and the owner of the house. Secondly, the pauper's father acquired no settlement by being assessed to and paying the poor rates in Carisbrook. By stat. 6 Geo. IV. c. 57, s. 2, no person is to acquire a settlement by "paying parochial taxes for any tenement," unless the other requirements of the section are also complied with. Stat. 4 & 5 Will. IV. c. 76, s. 66, which enacts that from the time of the passing of that Act "no settlement shall be acquired or completed by occupying a tenement, unless the person occupying the same shall have been assessed to the poor rate, and shall have paid the same, in respect of such tenement, for one year," leaves the former law, as to what is necessary to constitute an occupation, unaltered; merely specifying the poor rate as that parochial tax, assessment to and payment of which is to be a sine quâ non to the acquisition of the settlement, however complete in other respects. (He was then stopped.)

Kingdon, for the appellants:

Sufficient facts are stated in the case to enable the Court to draw the conclusion that the pauper's father was the tenant of the premises at Carisbrook, which he occupied for three years, during all which time he paid the rent and the poor rates for them. He entered into possession for the term of one whole year; for the case finds that his appointment as minister at Carisbrook was absolute for a year certain.

(CROMPTON, J. It is the custom to appoint the minister for a year; but there was no obligation on the circuit stewards to keep Mr. Worth in the same house for that period.)

Per CURIAM (1):

There must be judgment for the respondents. The pauper's

(1) CROMPTON and HILL, JJ.

REG.

v.

OVERSEERS

OF

TIVERTON.

[559]

[*560]

[561]

REG.

T.

OVERSEERS

OF TIVERTON,

1861. Jan. 24. [561]

[562]

father did not rent or hire the house at Carisbrook. He was very much in the position of a servant to the circuit stewards; who put him into the house taken by them, from which they could have removed him at their pleasure.

Judgment for the respondents.

REG. r. RECORDER OF LEEDS.

(3 El. & El. 561-568; S. C. 30 L. J. M. C. 86; 7 Jur. N. S. 210; 9 W. R. 270.) Overseers of a parish, on which an order of removal of a pauper had been made by two borough justices, gave notice of an appeal against the order to the next Quarter Sessions for the county in which the borough was situate. The borough had a separate Court of Quarter Sessions, which alone had jurisdiction to hear the appeal. The day before the Borough Sessions next after the notice of appeal were held, the appellants gave notice to the respondents that, finding that the Sessions for the county had no jurisdiction, they abandoned the appeal. The appellants did not appear, and the respondents did, at the Borough Sessions; which Court, on the application of the respondents, dismissed the appeal, and made an order for the payment by the appellants to the respondents of the costs incurred by the latter in the appeal : Held, discharging a rule for a certiorari to bring up this order, that the order was rightly made. That the Borough Sessions would have had jurisdiction to hear the appeal, if persisted in; the erroneous statement in the notice of appeal that the appeal would be made to the County Sessions being merely surplusage: and that, upon the abandonment of the appeal, the Borough Sessions had jurisdiction under the Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), s. 6, to make the order.

SHAW, in last Michaelmas Term, obtained a rule, calling on the Recorder of Leeds to show cause why a certiorari should not issue to bring up an order, made by him, for the payment by the overseers of the township of Applethwaite, in the county of Westmoreland, to the overseers of the township of Leeds, in the borough of Leeds, in the West Riding of the county of York, of the costs incurred by the latter as respondents in an appeal against an order of removal of a pauper from the said parish of Leeds to the said parish of Applethwaite.

The following facts appeared from the affidavits.

The order of removal, having been made on 27th June, 1860, by two justices acting in and for the borough of Leeds, was served on the appellants on 4th July, 1860, together with the grounds of removal. On 19th July, notice of appeal was served on the respondents by the appellants, stating that they "intended. at the next General Quarter Sessions of the peace to be holden in and for the West Riding of the county of York, at Leeds, in the said county, to appeal against the said order." On 27th August, a similar notice, accompanied with grounds of appeal, was also served. On 6th October, the respondents' attorney wrote to the appellants' attorney, giving notice that, on the hearing of the appeal, the Court would be moved to amend one of the grounds of settlement. On 8th October, the appellants' attorney