1834. BROWN against SHEVILL. pointed at, I can understand it; and it was insisted upon in the argument for the avowant in Francis v. Wyatt (a). But a tailor is not obliged to take in cloth to be cut by him. I find, indeed, that an old authority was cited to shew that he is (b); but that seems to have been afterwards repudiated : so that I do not see how we can make such a distinction available for the purpose of the present question. The jury have here found the fact, that the beast belonged to the plaintiff, and was sent to Woodham to be slaughtered. WILLIAMS J. I am of the same opinion. The article in question was deposited in the course of trade. Many proprietors of cattle have no place upon the premises where cattle can be slaughtered. The protection of the carcass, therefore, in a case like this, is for the benefit of trade, just as much as that of any article in the trades where the protection is admitted to exist. Allusion has been made to the necessity of the trade being public: by which is meant, I presume, that the nature of the case ought to be such that the landlord has not reason to suppose the goods to belong to his tenants more than to the tenants' customers. But in the case in the Exchequer (c), which has been relied upon for this distinction, the case of a beam kept for private use was cited (d), to which the distinction will not apply. (a) 3 Burr. 1499, 1501. S. C. 1 W. Bl. 484. Rule discharged. (b) In the argument for the avowant in Francis v. Wyatt (3 Burr. 1499.), counsel cited the Year-Book of Hil. 22 Edw. 4. 49. pl. 15. to that effect (per Brian C. J. of C. P. arg.). See the argument in Adams v. Grane, 1 Cr. & M. 384.; S. C. 3 Tyrwh. 330.; and judgment of Vaughan B. (c) See judgment in Wood v. Clarke, 1 Cr. & J. 497. S. C. 1 Tyrwh. 327, 328. (d) Read v. Burley, Cro. Eliz. 549. 596. S. C. Noy's Rep. 68. 1834. The KING against The Inhabitants of IKEN. were re ON appeal againt an order of two justices, whereby The Saturday, Pauper went into the service he was to make and burn pots, and, to do so, the use of yards, and of a kiln the den (both in Suffolk), the sessions quashed the order, he was to have subject to the opinion of this Court upon a case. case coming on to be argued in Easter term, 1833, Court ordered it to be restated; and the restated case was as follows: a a pot-maker. In 1813, George Chambers, being at that time married man, and settled in Frostenden, went into the service of Samuel Barnes, of Iken, as 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 off 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 and sheds, which belonged to, and were to be repaired by, B., who also was to find and cart the clay for the pots, and provide certain other necessary materials. the sale of the pots was to be paid to pauper, a quarter to B., a quarter was to find mate other quarter to be paid to rials, and the shopkeepers selling the pots. Afterwards B., being dissatis. fied with pau per's work, the 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 land on which they stood, without the clay, together with a tenement rented in the same parish by the pauper, were worth more than 10. per annum: Held, that, under the second agreement, the pauper rented a tenement of 107. annual value, and gained a settlement under 13 & 14 Car. 2. c. 12. 1834. The KING against The Inhabitants of IKEN. sold; another 25 per cent. for coals, whins, and red lead; and the remaining 25 per cent. was allowed to 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 6l. 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. vant. Biggs Andrews, and Prendergast, in support of the order of sessions. 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 (a). He must have occupied the kilns as owner, tenant, or serThe 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 upon 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 (b) 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 (c), Rex v. Tardebig (d), and Rex v. Mellor (e), 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 licence to use (a) Rer v. Hollington, 3 East, 115., Rer v. Benneworth, 2 B. & C. 775. (b) 4 T. R. 348 (c) 2 East, 189. (c) 8 T. R. 449. L 3 (d) 1 East, 528. machinery 1834. The KING against The Inhabitants of IKEN. 1834. The KING against The Inhabitants of IKEN. 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 (a). In Rex v. North Bedburn (b) 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 a 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 (c), Rex v. Langriville (d). 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 licence without that interest is not enough." In Rex v. Bowness (e) Lord (a) 4 B. & C. 230. (b) Cald. 452. Ellen |