Renting and Occupying the Middle Floor of a House.]-Two outer doors, and some steps which gave access to that floor, were appropriated exclusively to the tenant (the pauper). A separate flight of steps on the outside of the house, led by a different outer door to a passage on the middle floor, from which passage a tenant occupying the upper floor reached his premises by a staircase of his own. One of W.'s rooms opened into this passage, and W. could not reach that room but by going up the last-mentioned steps and along the passage, or by crossing the passage from his other rooms by a door in one of them, which was usually locked. All the last-mentioned rooms communicated with each other, and with both the doors appropriated to W. Held, that the premises occupied by W. were a “separate and distinct dwelling-house," within 6 G. IV. c. 57, by renting which a settlement might be gained (y).

A toll-house of a navigation, though by being used as a publichouse, it is of greater value than 107. per ann., will not confer this settlement (z).

Land which has been hired, taken, or inclosed, under acts for relief of poor (a), will not confer a settlement on a poor inhabitant to whom it is let, by reason of his renting and occupying it, either alone or with any other land or tenement (b).

Tenement must be in the Parish.]—The tenement, or at least as much of it as is worth 107. a year parcel of a larger rent, must be within the parish, and parol evidence is admissible, to show that that proportion of the land rented is so situate (c).

Value.]—The value of the tenement need not be 107. a year (d). If a house is demised to a tenant with the landlord's fixtures, or with

(y) R. v. Great Usworth, 5 Ad. & E. 261; 6 Nev. & M. 811.

(z) R. v. St. Andrew the Less, Cambridge, 10 B. & C. 742. See 54 G. III. c. 170, s. 5.

(a) Viz. 59 G. III. c. 50 ; 1 & 2 W. IV. c. 42, and c. 59, as to crown lands. (b) 1 & 2 W. IV. c. 42, s. 55, and id. c. 59, s. 2.

(c) R. v. Pickering, 2 B. & Adol. 267, on 6 G. IV. c. 57. Remarked on, 1 Ad. & E. 142.

Acted on in Reg. v. Hockworthy, 2 Nev. & P. 383; 7 Ad. & E. 492, where a writing was produced, demising land, and though not under seal, professing to de

mise incorporeal hereditaments, also at an entire rent of 751. a year. Evidence was held properly admitted to show that the land demised was worth 107. a year, as also, that it had been occupied and rent paid, &c. according to 6 G. IV. c. 57.

Note.-Such a writing should be stamped as a lease of the whole amount paid for land and hereditaments, and not as a "lease not otherwise charged" under 55 G. III. c. 184, Sch. Part I. S. C.

(d) R. v. Ashfield, 9 B. & C. 939; 4 Nev. & M. 709; R. v. Ampthill, 2 B.

& C. 847.

land out of the parish, at a general rent of 107., it will suffice (e); but a mere chattel, as a post or smock windmill, resting on, but not inserted into a brick foundation, and so not affixed to the freehold, will not, even to eke out land held with it to 107. (ƒ). Cæteris paribus, the rent paid is a fair criterion of the value (g).

Hiring of the Tenement.]-The hiring of the tenement, if bond fide (h), may be general; for, if general, it must be presumed to be for a year (i). It will suffice if defeasible by three months' notice (j), or if the rent is made payable at any interval of time less than a year (k). It must be for 107. for a year at least, taking that rent at the gross sum actually payable to the landlord, whether he pays the tithes (1) or tenant's taxes or not (m), and is not avoided by a third person being a surety for the rent (n); nor will a hiring by two jointly at an entire rent above 107. and under 201. per ann. confer a settlement on either, either by renting the tenement, or by being rated and paying rates in respect of it (o); though it seems that such a joint hiring and occupation would do if the value were 207. or more (p), but this is now doubtful (g).

Evidence of the Hiring, Occupation, and Renting the Tenement.] -Difficulties often occur in proving the hiring, occupation, and renting a tenement, from the circumstance that the terms of the agreement have been reduced into writing and signed by the parties, on a single unstamped paper, which is either in the possession of the adversary, or has been lost. In the first case, a judge's order should be obtained, calling on the other side to give a copy and produce the original at the stamp office to be stamped (r), which will be done on payment of

(e) R. v. St. Dunstan in Kent, 4 B. & C. 686; 7 Dowl. & Ry. 178.

(f) R. v. Otley, 1 B. & Adol. 161; Culling v. Tuffnell, B. N. P. 34.

(g) See R. v. Ashfield cum Thorpe, 9 B. & Cr. 439; 4 Man. & Ry. 709. (h) Idem.

(i) Doe v. Brown, 8 East, 165; Doe v. Watts, 7 T. R. 83; R. v. Wainfleet, 8 B. & Cr. 229; 2 Man. & Ry. 223; R. v. Rawden, 8 B. & Cr.708; 3 Man. & Ry.426.

(j) R. v. Herstmonceaux, 7 B. & Cr. 551; 1 Man, & Ry. 426; and so under 6 G. IV. c. 57.

(k) Ibid.; R. v. Wainfleet, 8 B. & C.

229.

(1) Reg. v. St. John's Bedwardine, 8 Ad. & E. 192; 3 N. & P. 302, S. C. See Reg. v. Hockworthy, and R. v.

Pickering, as to renting land and incorporeal hereditament at one rent.

(m) R. v. Thurmaston, South End, 1 B. & Adol. 731. See 13 East, 320, R. v. St. Paul's, Deptford.

(n) R. v. Kegworth, 2 M. & Ryl. 28; 1 id.; Mag. Cas. 281.

(0) R. v. Great Wakering, 5 B. & Adol. 971.

(p) See per Patteson, J., in R. v. St. Nicholas, Rochester, 5 B. & Adol. 223, remarking on R. v. Troubridge, 6 B. & Cr. 88. As to relinquishing a tenancy by verbal agreement and then retaking it, see R. v. Banbury, 1 Ad. & E. 136; 3 Nev. & P. 292.

(q) R. v. Caverswall, ante, p. 787. (r) Tidd, 9th ed. 287, Reid v. Coleman, 4 Tyr. 274.

51. penalty. When the order has been complied with, notice should be given to produce the original at the hearing of the appeal, so as to let in the copy as secondary evidence, if the original is not produced (s). But if the agreement is proved to have been in writing, and has been lost, or is not produced, or even if it has been destroyed by the wrongful act of the party against whose interest it operated (t), then, should it be proved (u) to be unstamped at the time of its signature, or when it was last seen, the legal proof of renting the tenement will be inaccessible, and no parol evidence can be given of its contents. But though the agreement may have existed, or may still exist, in writing, still, if the terms of the tenancy are immaterial to the case, the facts of the taking, the occupation, the value of the tenement, and the payment of a sum as rent for it, may be proved by oral testimony; unless it should appear from any witness, whether in chief or on cross-examination, that a written agreement was entered into (v), and, as it seems, existed in force and applicable at the time in question to which the oral evidence is sought to be applied (w). For the rule is very clearly settled, that if it comes out on the cross-examination of the witnesses on one side, that there is a written agreement concerning the premises, the party who called them must produce it (x); but if he makes out a prima facie case, without showing that there was any written contract, the other party, if he relies for a defence on the specific terms of that written contract, must produce and prove it in the usual way (y).

(s) R. v. Castle Morton, 3 B. & Ald. 588. See also 7 B. & Cr. 613; 4 B. & Adol. 208; Doe d. -v. Slight, 1 D. P. C. 163.

(t) Rippener v. Wright,2 B. & Ald. 478. (u) Wheatley v. Williams, T. & Gr. 1043. If this is not proved, the court ought to assume that it was stamped before the parties signed, S. C. See 2 M. & W. 74; 1 id. 533; 4 Bing. N. C. 434.

(v) R. v. Holy Trinity, Kingston-onHull, 7 B. & Cr. 611; 1 M. & Ry. 444, S. C. as remarked on by Bayley, J., in R. v. Merthyr Tidvilt, 1 B. & Adol. 31; Fenn d. Thomas v. Griffith, 6 Bing. 534. The observation made arguendo in R. v. Padstow, 2 Ad. & E. 213, on R. v. Holy Trinity, that, as it turned on 13 & 14 C. II. c. 12, the fact of tenancy only was requisite to be proved, so that its terms were immaterial, was probably suggested by the dictum of Bayley, J., to that effect, in R. v. Merthyr Tidvill. It was, it seems, answered by the deci

sion in R. v. Padstow, 4 B. & Adol. 208, where the rent agreed for, the occupa tion, and payment of rent under 6 G. ÏV. c. 57, were proved for the respondents by like oral evidence, as in R. v. Holy Trinity; and as it only appeared from the evidence adduced for the appellants, there there had been an agreement in writing on unstamped paper, the latter were held bound to produce it in answer to the respondents' case. Besides, in R. v. Merthyr Tidvill, it appeared on cross-examination of the witness who had sworn to the renting under 6 G. IV. c. 57, of a tenement at 351. a-year, as well as to the occupation, and payment of a year's rent, that the agreement for the premises was in writing; which appears to reconcile that case with R. v. Padstow.

(w) Doe v. Morris, 12 East, 237. See Stevens v. Penny, 2 B. Moore, 349. (x) See last note, and Fenn d. Thomas v. Griffith, 6 Bing. 533.

(y) R. v. Padstow, 4 B. & Adol. 208,

User and Enjoyment of the Tenement under 59 G. III. c. 50.]The tenement, if it consist of a house or building, must be held by the hirer himself for a year (z), but he may underlet part (a); and if he continues to pay the rent, his interest will last to the end of the year, though he leaves weeks before it (b).

But land cannot be underlet; for, by 59 G. III. c. 50, it must be occupied for the year, that is, separately (c). Nor can it be held jointly, unless perhaps if each share is 107. or over (d). The hiring, occupation, and payment of rent need not, under this act, be in the same year (e); but that for the year, single occupation may be under different hirings (f). So if there were two hirings, and two occupations, but each occupation was under a single hiring for a year, and there was one year's occupation to a sufficient amount under a yearly hiring (g). An order of removal after forty days' residence will not avoid the gaining a settlement under 59 G. III. c. 50, unless it produces the effect of making the pauper or his family abandon the tenement. Thus, where the order directed the removal of the pauper and his family, and the pauper alone was removed, but returned the same day, occupied the rest of the year, and paid his rent, part in goods and part in money, he was held to gain a settlement (h).

Payment of Rent.]-The party hiring must, under this act, himself pay the whole year's rent, whatever its amount (i); and payment

per Parke, J., Mich. 1832; and see the previous cases of Stevens v. Pinney, 8 Taunt. 327; R. v. Rawdon, 8 B. & Cr. 708; Fielder v. Ray, 6 Bing. 335; Reed v. Deere, 4 B. & Cr. 266; Cotterill v. Hobby, 4 B. & Cr. 465; Brewer v. Palmer, 3 Esp. C. 213 (approved by Best, C. J., and Burrough, J., in Strother v. Barr, 5 Bing. 136; per Cur. in Fenn d. Thomas v. Griffith, 6 Bing. 533, in Budd v. Hughes, 8 D. P. C.; but denied by Park and Gaselee, Js., in Strother v. Barr). Also Strother v. Barr, 5 Bing. 136, in which last case the court of C. P. was equally divided. See also 2 New Cas. 735; 2 M. & S. 434, 445; 3 B. & Cr. 697; 7 id. 265; M. & Malk. 257; 4 C. & P. 481; 3 T. R. 406; 2 B. & P. 118; 2 Esp. 724.

A witness cannot be suffered to refresh his memory by extracts from any writing, ante, p. 517.

(2) R. v. Crayford, 6 B. & Cr. 68. (a) R. v. North Collingham, 1 B. & Cr. 578; R. v. Great Bolton, 8 B. & Cr.

71.

(b) R. v. Stow Bardolph, 1 B. & Adol.

219.

(c) R. v. Ockley, 1 B. & Adol. 818.
(d) See per Patteson, J., in R. v.
St. Nicholas, Rochester, 5 B. & Adol.
223; remarking on R. v. Tonbridge, 6
B. & Cr. 88; R. v. Great Wakering,
5 B. & Ad. 971.

(e) R. v. Stow, 4 B. & Cr. 87.
(f) Ibid.

(g) R. v. Tadcaster, 4 B. & Adol. 703, on 6 G. IV. c. 57, as stated by Parke and Patteson, Js., in R. v. Banbury (Inh.), 1 Ad. & E. 142, 144, which was decided differently on 1 W. IV. c. 18, see post, R. v. Banbury. R. v. Tadcaster will not be extended, S. C.

(h) R. v. Barham, 8 B. & C. 99. See R. v. Fillongley, 2 T. R. 709; and R. v. Kenilworth, id. 598, as remarked on in R. v. Willoughby, 4 Ad. & E. 152.

(i) R. v. Carshalton, 6 B. & C. 93; R. v. Kibworth Harcourt, 7 B. & C. 790; R. v. Dilcheat, 9 B. & Cr. 183.

after his death, though out of his assets, cannot confer a settlement on his widow (i). Whether payment by distress will satisfy this act, as a payment by the party, is not expressly decided (j): but it would probably be held that it will not, being made out of that, over which the pauper had no control (k). The occupation and payment of rent must not be under different hirings (1). The year's rent must be paid at the time the order of removal from the parish is made (m). Reduction of rent during the year will not affect the settlement, if the occupation continue for the year, and 107. is paid for that time (n). A settlement is gained by a pauper who has occupied a tenement for a year, rated at 107. and paid 107. in respect of it, though the sum of 6s. for tithes was agreed to be paid, and was paid, by his landlord (0).

Of the Law, as altered by 6 G. IV. c. 57, after the Repeal of 59 G. III. c. 50 :—with a Sketch of the Leading Decisions on Settlement by having rented a Tenement between 22 June, 1825, and 30 March, 1831 :—viz, under 6 G. IV. c. 57.]—The statute 6 G. IV. c. 57, passed on 22d June, 1825, recites in s. 1, that the settlement of the poor has been made in some instances to depend on the annual value of tenements which they may have rented, or upon the annual value of tenements in virtue of which they have paid parochial rates; and that the ascertaining such value in such respective cases has given rise to very expensive litigation, and that doubts had been entertained whether 59 G. III. c. 50, had been effectual for the purpose of altering the law in respect of the necessity of proving the annual value of tenements so rented.

It then repeals that act; and by s. 2 (without effecting any revivor of 13 & 14 C. II. c. 12) (p), enacts, that no person shall acquire a settlement in any parish or township maintaining its own poor, by, or

(i) R. v. Crayford, 6 B. & C. 68. (j) R. v. Carshalton, 6 B. & Cr. 93; and cases collected, 2 Ad. & E. 600. As to payment by the landlord accepting tenant's fixtures as an equivalent, see R. v. Merthyr Tidvill, 1 B. & Adol. 29. See p. 794, n. (c).

(k) R. v. Pakefield, 4 Ad. & E. 612. Adhered to by Q.B. in R. v. Melsonby, 11th Nov. 1840, on argument that payment of rent by any means would suffice. The bare point, however, was not raised by the facts: for the landlord had accepted another tenant, and distrained fixtures, which the latter was to take of pauper, for rent due from both. It did not ap

pear what pauper's fixtures sold for. 19 Law J. Part I. Mag. Cas. 2.

(1) Reg. v. Melsonby.

(m) R. v. Ampthill, 2 B. & Cr. 847; but see R. v. Barham, 8 B. & Cr. 99 ; R. v. Willoughby, 4 Ad. & E. 152, on 1 W. IV. c. 18, S. C.; stated post, P. 797.

(n) Rent 161. payable quarterly. In second and succeeding two quarters, 10. a quarter was taken off, R. v. St. Mary Kalendar, 9 Ad. & E. 626.

(0) Reg. v. St. John's, in Bedwardine (Inh.), 8 Ad. & E. 192; S. C. 3 N. & P.