A quarter of the produce of the sale of the pots was to be paid to pauper, a quarter to B., a quarter was to find materials, and the other quarter to be paid to shopkeepers selling the pots. Afterwards B., being dissatisfied with pauper's work, put an end to the agreement; and the parties made a second agreement, under which pauper was to pay a sum to B., after each time that he burned a kiln (calculated so as to produce to B. about as much as the quarter under the first agreement), for the use of the yards, and of the kiln and sheds, which B. was to repair, and to find articles as before, pauper digging the clay, and making an allowance to B. for the articles found by him. Pauper was to have the pots. The kiln, sheds, and lands on which they stood, without the clay, together with a tenement rented in the same parish by the pauper, were worth more than 10l. per annum :

Held, that, under the second agreement, the pauper rented a tenement of 10l. annual value, and gained a settlement under 13 & 14 Car. 2, c. 12.

ON an appeal against an order of two justices, whereby Sarah Chambers and her two children were removed from the parish of Iken to the parish of Frostenden (both in Suffolk) the sessions quashed the order, subject to the opinion of this Court upon a case. The case coming on to be argued in Easter term, 1833, the Court ordered it to be restated; and the restated case was as follows:

In 1813, George Chambers, being at that time a married man, and settled in Frostenden, went into the service of Samuel Barnes, of Iken as a pot-maker. Barnes rented a considerable farm in the parishes of Iken and Sudbourne, including a pot-kiln and sheds in Iken. Chambers was to make and burn pots; to do which, he was to have the use of the kiln, sheds and yards. Barnes was to keep the kiln and sheds in repair; to furnish and cart of all the clay wanted, and supply horses to grind it twice; and to find red lead, with whins and coal for burning the pots. Chambers was to receive 25 per cent. on the sale of the pots, for making and burning them; Barnes was to receive 25 per cent. for the use of the kiln, sheds, and yards, and preparing and carting the clay, and also for carting out the ware when *sold; another 25 per cent. for coals, whins, and red lead; and the remaining 25 per cent. was allowed to [*148 shopkeepers for selling the goods. Chambers resided in a cottage in Iken, which he rented of Barnes for three guineas a year, and worked the kiln until 1815; when Barnes being dissatisfied with the ware made by Chambers, put an end to the foregoing agreement without notice; and the parties entered into a new one, as follows:

The average number of kilns burnt during the year, was about twelve; and, the value of each being about 247., it was agreed that Chambers should pay Barnes 67. after each burning, for the use of the kiln, sheds, and yards, and for furnishing, carting, and grinding the clay, and carting the ware out when sold. Barnes was to keep the kiln sheds in repair, as before; to provide red lead, coals, and whins for burning the pots; for which Chambers was to allow him in the settlement of accounts; and Chambers was to dig the clay, and do as he pleased with the ware. Chambers continued to reside in the cottage at the same rent, and worked the pot-kiln under this second agreement until, 1828, when he died. The clay furnished by Barnes was dug and carted in the winter time, for the succeeding summer, from lands in Sudbourne occupied by him, except for one season only, when it was taken from other lands in Iken, not occupied by Barnes. The cottage, with the kiln and sheds, and land on which they stood, without the clay were worth more than 107. a year; but the clay itself was worth 15s. a year only.

The question was, whether Chambers came to settle upon a tenement within the meaning of 13 & 14 Car. 2, c. 12, s, 1.

*Biggs, Andrews, and Prendergast, in support of the order of ses[*149 sions. This was a settlement by renting a tenement before stat. 59 G. 3, c. 50. The sessions must be taken to have affirmed the fact of renting, by their quashing the order of removal. But, on the facts stated, there can be no question that Chambers occupied the cottage, kilns, and shed for his own benefit, and to the value of 107.; and whether he had the exclusive occupation

of every part is immaterial, Rex v. Hollington, 3 East, 113; Rex v. Benneworth, 2 B. & C. 775. He must have occupied the kilns as owner, tenant, or servant. The ownership is not asserted; and it is clear that he did not, under the second agreement, occupy as servant: no one expression in that agreement authorises such a construction. He is to work at the kilns when he pleases, and to have the manufactured article for himself; and the rent which he pays at the several burnings is not dependent on the work which he does, although, as is usual between landlord and tenant, the value of the occupation is that upon which the remuneration to the owner is calculated. It is true that this is paid for the "use" of the kilns; but that word does not exclude the relation of landlord and tenant, any more than the words "use and occupation." In Rex v. Brampton, 4 T. R. 348, renting after-grass was held to confer a settlement; and the Court added, that taking land for a particular purpose, such as that of setting potatoes, was sufficient to confer a settlement: Rex v. Dodderhill, 8 T. R. 449; Rex v. Tardebig, 1 East, 528, and Rex v. Mellor, 2 East, 189, in which a settlement was held not to have been gained, were all cases (to use the expression of Lawrence, J., in the last case) where the contract was for a mere

*150] license to use the *machinery annexed to the soil, and not for a letting. Whatever interest the parties in any of these cases may have gained in the soil, was simply incidental to the use of the machinery. Here, there is an actual use of the kiln, the shed, and the yard. The absence of a formal leasing at a stated rent is immaterial: Rex v. Chediston, 4 B. & C. 230. In Rex v. North Bedburn, Cald. 452, the lease of a landsale colliery, rented at 257. a year between two, was held to confer a settlement, though counsel objected that the meaning of the landsale colliery was the right to get coals, with the use of the necessary implements; that these were in a great measure personal chattels; and that a considerable part of the rent must be considered as paid in respect of them to which the Court answered, that there was a primâ facie. settlement, and they could not take notice of the meaning ascribed by counsel to the words "landsale colliery," unless it were stated in the case.

Follett and Collyer, contrà. It is conceded on the other side, that the mere fact of use and occupation, and even the right to use and occupy, is not enough, without an actual interest of some kind in the thing occupied. An occupation as servant is insufficient: Rex v. Cheshunt, 1 B. & Ald. 473; Rex v. Langri ville, 10 B. & C. 899. In the latter case Lord Tenterden said, "It is essential, whether the subject of occupation be the land itself, or a part of its profits, that the pauper should have an interest as tenant or occupier,-a possession by mere license without that interest is not enough." In Rex v. *151] Bowness, 4 M. & S. 212, Lord *Ellenborough said, "I own it appears to me that it has been uniformly adopted as the rule for construing the statute of Car. 2, as much as if the word itself had been inserted in the statute, that the coming to settle in means by renting or holding in the character of tenant." There must be rent, or services in the nature of rent. In Rex v. Seacroft, 2 M. & S. 472, it was held that the right to use a cellar was not a tenement, when it appeared to be only a privilege allowed in respect of the principal thing in the contract, which was the party's hiring himself to be waiter. Here, the principal part of Chambers's contract was the working of the kilns. That he originally came in as a servant, cannot be disputed: he was then paid according to what he made: but his master was dissatisfied with his service, and made a fresh bargain, and might have discharged him if he pleased. Then, under the new bargain, there is no fixed rent for the kilns; the number to be worked is not specified and Barnes might still have discharged Chambers, if he had again found reason to be dissatisfied with the ware. [PATTESON, J. Under the new bargain, it did not signify to Barnes what the ware was.] He might have turned him away for using the kilns improperly, or for not using them; but he could not have distrained upon him; and Barnes, not Chambers, was evidently the rateable occupier. In Rex v. Hammersmith, stated in the note to Rex v. Dodderhill, 8

[*152

T. R. 450, the pauper covenanted with the owner of a mill to deliver at the mill, and grind there, a certain quantity of corn weekly, paying the owner a certain price per load; and the mill-owner covenanted that the pauper should have the liberty to graze his horse in a meadow, and the use of a stable and cart-house; and the mill-owner was, after the expiration of the term, to take the utensils of the mill at a valuation: and this was held not to be a taking of a tenement, though it seems that the occupation of the mill must have been exclusive. Here, even if there were a joint occupation by Barnes and Chambers, it does not appear that Chambers's share was of the requisite value: but, in fact, it is an occupation by Barnes solely. The Courts have shewn a disinclination to extend the effect of stat. 13 & 14 Car. 2, c. 12. Hitherto, every settlement allowed has been upon a case of occupation by the pauper for himself. If a pauper, coming to a place to be employed there, is to be held to rent a tenement by such employment, it is difficult to see what limit is to be assigned to the operation of the statute. With respect to the finding of the sessions, they have quashed the order subject to this case; and, besides, they distinguish between the renting of the cottage and the use of the kilns. Lord DENMAN, C. J. I think a settlement was gained in this case. It is contended that Chambers's occupation under the second agreement was merely a continuation of that under the first; that he had no independent interest, and that his occupation was merely ancillary to a service. But, looking at the second agreement, I own I think he had an independent interest, and that he was not liable to be turned out at will. It is true, that there are expressions in this case, respecting the earlier agreement, which render it doubtful whether a settlement could have been gained by that; and we find that Barnes actually exercised the power of putting an end to it, without notice, *on being dis[*153 satisfied with Chambers. That fact, however, does not go far to interpret the agreement; and, at any rate, we cannot import the first agreement into the second, which appears to me to confer a substantial interest, and one under which Chambers was entitled to remain. Perhaps the best illustration of this case is that of Rex v. Seacroft, 2 M. & S. 472, where the alleged occupation was merely ancillary to the service, and consequently conferred no settlement. There, however, the party was engaged expressly as a servant. But here, the party had a right to remain as long as he kept his agreement. He, therefore, had an interest which gave him a settlement.

TAUNTON, J. I am of the same opinion. If we had the first agreement only; it certainly would be a material fact, that the pauper went into Barnes's "service;" and I should pause before saying that, in that case, I could infer a contract for a tenement. But the second agreement supersedes the first; and, whatever my opinion on the first might be, under the second there was clearly a taking. The pauper had the property in the pots manufactured, the landlord finding the clay, red lead, coals, and whins necessary for the manufacture, and Chambers paying 67. after each burning. Then it is found, as a fact, that the cottage, with the kiln, sheds, and land, is worth more than 107. a year. Here the principal object of the contract clearly was, that the pauper should have the use of the kiln, sheds, and yard; and he could not have the use without the occupation. At the same time, if the occupation were *merely ancillary to a service, it would not confer a settlement. But here I apprehend [*154 that there is no service. Chambers could not be called a servant at all under the second agreement. The use of the building and yards was in the pauper, and the property in the pots, when manufactured, was in the pauper. I agree in the decisions of Rex v. Cheshunt, 1 B. & Ald. 473, Rex v. Langriville, 10 B. & Cr. 899, Rex v. Bowness, 4 M. & S. 210, and Rex v. Seacroft, 2 M. & S. 472. Rex v. Hammersmith, (Note to Rex v. Dodderhill, 8 T. R. 450,) is the strongest case; and it is somewhat difficult to distinguish it from the others: but I observe that counsel there gave up the settlement, and the reasons for the judgment are not stated: the only ground on which the decision, if right (and

I do not say it was not,) can be justified, is, to suppose that the Court considered the grazing of the horse in the meadow, and the using of the buildings, to be ancillary to the principal contract. But that is a different case from this. Rex v. Seacroft, 2 M. & S. 472, is also distinguishable. There the pauper went into service expressly as a waiter: it never was contended that he was a tenant it was a mere contract of service: he was to have the use of the tap and the cellar, which is a profitable privilege often enjoyed by the principal waiter at large inns; it was a privilege, therefore, attached to him in reference to the principal thing; that is, to his contract as a waiter, which is inconsistent with the character of a tenant. Here, the principal object was to enable the pauper to manufacture the pots, which he could not do without the buildings and yards. It is, therefore, a case of use and occupation.

*PATTESON, J. I ground my opinion on my construction of the *155] second agreement: we are not called on to construe the first. Under the second agreement, the relation of master and servant did not exist: such a relation is quite inconsistent with the stipulations The pauper is to pay 67. after every burning, and to burn what he pleases. Barnes, who had been dissatisfied with the old agreement, exercises under the new one no superintendence as master, or even as partner. The 67. is evidently paid by way of rent. As to the cases cited, none of them create any difficulty, except Rex v. Hammersmith, (Note to Rex v. Dodderill, 8 T. R. 450.) That case is certainly very loosely reported; and I cannot understand the ground of the decision. If the only debated point there related to the grazing in the meadows, and to the use of the buildings, I can understand it; for it may be that the Court held that there was merely a license, or, at any rate, not the relation of landlord and tenant. But as to the stipulation respecting the mill, and the taking back of the utensils at a valuation, that part of the case I cannot explain: there must have been something not reported. Perhaps, in the present case, the sessions ought to have found the fact of the relation of landlord and tenant; but it is clear that relation existed.

WILLIAMS, J. I am of the same opinion, and that upon the second agreement. Mr. Follett makes use of the first part of the case to explain the second; and, if that could be done, there might be some foundation for his argument. He has also noticed the difference of language in the case, in speaking of the cottage and of the other buildings; but that, I think, arises merely *156] *from the sessions having doubted whether the circumstances, as to the latter, took away the quality which creates an occupation. I think that, under the second agreement, there was an occupation. The case has been argued as if this occupation might be referable to something else, like the situation, for instance, of a waiter or a butler, or, which would be stronger still, that of a porter at a lodge, who would occupy exclusively. But, as to that point, I agree, with the rest of the Court, that the service there explains away the occupation. Here it is not so. Order confirmed.

The KING against The Inhabitants of RAWDEN.

Saturday, Nov. 15.

Appellants against an order of removal relied upon the settlement of a deceased party by apprenticeship; and, to let in parol evidence of the indenture, they called the widow of the deceased, who stated that her husband, in his last illness, told her that he received his indentures from his master at the end of his apprenticeship, and wore them out in his pocket. The sessions confirmed the order, subject to the opinion of this Court as to the admissibility of the evidence.

The Court held, that, without further proof of inquiry after the indenture, evidence of this conversation was not admissible; and they refused to send the case back to be restated.

VOL. XXIX.-7

ON appeal against an order for the removal of Mary Oldfield, the widow of Thomas Oldfield, from the township of Golcar to the town of Rawden, both in the West Riding of Yorkshire, the sessions confirmed the order, subject to the opinion of this Court upon the following case :

[*157

The respondents relied upon a settlement by apprenticeship, alleged to have been gained by Thomas Oldfield in the appellant township. The indentures were not produced; but it was proved that they had been executed by Thomas Oldfield and his father and the master; and, to prove the loss of the indentures, so as to let in parol evidence of the contents, the pauper *Mary Oldfield was called by the respondents. She stated that, a short time before her husband died, and during the illness which terminated in his death, she had some conversation with him about the indentures. She was asked by the respondents' counsel what that conversation was. This was objected to on behalf of the appellants; but, after argument, the Court decided that the evidence was admissible. She then stated that she had asked her husband what had become of his indentures; and he said that he had got them away from his master after the end of his apprenticeship, and had worn them in his pocket till they were all to pieces. Parol evidence was afterwards admitted of the contents. The question for the opinion of the Court was, whether the above conversation was admissible in evidence, or not.

Blackburne and Dundas, in support of the order of sessions, acknowledged that the evidence could not be held admissible, unless it were taken to have been proved that the indenture was in no other hands than Thomas Oldfield's at the time of the conversation; but they contended, that this might be inferred from the statement of the case, which then would be like Rex v. Morton, 4 M. & S. 48; and they urged that, at all events, the Court might presume that some evidence of this kind was given at the sessions; and, therefore, there was ground for sending the case back to be restated.

Starkie and Milner, contrà, were stopped by the Court.

*Lord DENMAN, C. J. If the statement of the case was incorrect, it should have been set right before. This is, at any rate, a dangerous kind [*158 of evidence, and to be received with caution; and, unless the requisite proof had been first given, as to the possession of this indenture, the pauper's conversation on the subject was clearly not admissible. In Rex v. Morton(a) inquiry had been made of the master's executrix for the indenture in question: here no such fact appears. The order of sessions must be quashed. TAUNTON, PATTESON, and WILLIAMS, Js., concurred.

Order of sessions quashed.

HARRIS against DUNCAN. Monday, Nov. 17.

In an action of trespass against several defendants, two suffered judgment by default; and the jury who tried the cause assessed the damages against them at a farthing Held, that the Judge might certify to deprive the plaintiff of costs as against these parties, under 43 Eliz. c. 6, s. 2.

LORD DENMAN, C. J., delivered the judgment of the Court in this case, as follows:

Mr. Steer moved (b) to set aside a Judge's certificate to deprive a plaintiff of costs, where, in an action of trespass brought against three defendants, one

(a) 4 M. & S. 48. It was proved there that only one part of the indenture had been executed. See Rex v. Castleton, 6 T. R. 236. Rex v. Denio, 7 B. & C. 620. Rex v. Piddlehinton, 3 B. & Ad. 460.

(b) Nov. 11th. Before Lord Denman, C. J., Taunton, Patteson, and Williams, Js.