ferred to, and consequently being then unable to substantiate their claim to the cottage, the pauper and his family continued to reside there until the date of the order appealed against; but the deed having been then recently found, the pauper and his family, who had become chargeable to the parish, were removed under the above order of the magistrates, from the cottage alluded to, to the parish of Staplegrove. Three of the original lessees have been long dead, and John Gill is the sole survivor. The question for the opinion of the Court was, whether the pauper gained a settlement by estate, in right of his wife, by residing more than forty days in the cottage in question, under the circumstances above stated. The case was argued in last term by Moore and Erskine, in support of the order of sessions. They contended, that there was not a sufficient residence in this case to gain a settlement. Here, the only interest which the pauper could possibly have was in the reversion to this estate after a lapse of 1000 years. Now there could be no reason why a reversioner should reside to superintend so remote an interest. And it is put by Lawrence J. as a question of doubt, in Rex. v. Houghton-le-Spring (a), and though the judgment of the Court was afterwards against his first impression, yet it does not appear that he ever altered his opinion on this particular point. This is like the case of Rex v. Catherington (b): there the pauper, who was entitled to the equity of redemption, resided, for a particular purpose, in one of the houses mortgaged, and gained no settlement. And Rex v. Eatington (c) is also in point. (a) 1 East, 257. (b) 5 T. R. 771. (c) 4 T. R. 177. Besides, 1819. The KING against The Inhabitants of STAPLEGROVE. 1819. The KING against The Inhabitants of STAPLEGROVE. Besides, the possession of the pauper was wrongful: she was let in by the parish officers, to nurse her father, and then laid claim to the property. On this ground, therefore, her residence was insufficient. Rex v. St. Michael's, Bath. (a) Gaselee, C. F. Williams, and Adam, contrà. This case is governed by Rex v. Houghton-le-Spring. (b) The rule is, where a party has an estate, and resides in the parish forty days, a settlement is gained by such residence; and, whether the estate be large or small, or expectant after one year or 1000 years, makes no difference. Here, the estate might come into possession before a thousand years, if any forfeiture took place: and a pauper has a right to reside, to watch his own interest. The case of Rex v. Houghton-le-Spring was of a reversioner, for the property was in mortgage at the time. And Lawrence J. afterwards agreed, that his first opinion was not right. And in that case the two cases of Rex v. Eatington and Rex v. Catherington were cited, and considered not in point. Rex v. St. Michael's, Bath, is also distinguishable in two respects: first, there was a conveyance of the whole estate; and, as Lord Mansfield said, he had only a chance of the residue; and, secondly, there was also fraud. Both these are wanting in the present case. Cur. adv. vult. BAYLEY J. now delivered the opinion of the Court. In this case, which was argued last term, in the absence of my Lord C. J., there were two questions; one, whether forty days' residence in a parish, in which the (a) 2 Dougl. 630. (b) 1 East, 254. pauper 1819. The KING against The Inhabit ants of pauper had a freehold, subject to a lease for years, would be sufficient to confer a settlement by estate; and the other, whether it would be so, if the residence were upon that estate, and without right. At the time of the argument, the first point appeared to us to be STAPLEGROVE. settled, especially by the case of Rex v. Houghton-le Spring, which establishes that such residence is sufficient; and it was upon the second point only, that we wished for time to consider. Upon that point the facts are these. The father of the pauper's wife had a freehold cottage in Creech St. Michael: in 1793, he let it to the parish officers, and their successors, for 1000 years, and they took possession. In 1813, he was placed in it, with another pauper, by the parish officers, and the pauper's wife came to nurse him. He died there in the same year, and his daughter continued in the cottage; and, at the end of about six weeks, her husband, the pauper, joined his wife, and laid claim to the cottage, as his wife's property. The parish officer had mislaid the conveyance to them, and, therefore could not withstand this claim, and the pauper and his family continued their residence from 1813 to 1818, when the pauper having become chargeable, and the parish officers having recently found their conveyance, the removal in question was made; and the point submitted to our consideration, by the sessions, is this, whether the pauper gained a settlement by this residence. And we are of opinion that he did. The sessions have found no fraud in the pauper or his wife, in acquiring or retaining possession; and, if we were at liberty to infer fraud, which we are not, there are no premises in the case from which such an inference could properly be drawn. The husband comes to the cot tage 1819. The KING against The Inhabitants of tage under a claim of right; and, for any thing which appears, he might really believe he had that right. The parish officers, who alone could gainsay that right, do not gainsay it, nor take any steps to oppose his occuSTAPLEGROVE. pation, but acquiesce in it for a period of more than four years. There is no decision, under circumstances in any respect like the present; for the cases cited of Rex v. St. Michael's, Bath, and Rex. v. Catherington, were cases where the pauper had nothing in the parish which he had a colour for calling his own; and if not, we must look to the words of the statute, which give the right of removal, that we may see whether this case is within the mischief against which that statute meant to provide. That statute is 13 and 14 Car. 2. c. 12. And it recites that poor people are not restrained from going from one parish to another, and, therefore, do endeavour to settle themselves where there is the best stock, the largest commons or wastes to build cottages, and the most woods to burn and destroy, and when they have consumed it, then to another parish, and, at last, become rogues and vagabonds. And then it enacts that the justices may remove such persons to the parish where they were last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days, at least. Is, then, this pauper within the words, the spirit, or the mischief of this provision? He comes to Creech, not for any of the motives this statute meant to repress, but because he has a freehold in the parish; not to prey upon the parish stock, but to live upon that of which he is the freeholder, and as to which he was warranted in concluding that he was entitled to the posses sion. This is not a case of fraud, nor a case in which the the pauper is conscious at the time, that he is taking the possession wrongfully, nor a case in which the person entitled to the possession takes prompt measures to displace him. Leaving such cases to be decided when they may arise, it is sufficient for us to say, that in this case, where there does not appear to have been fraud or consciousness of wrong, and where no measures were taken, within the forty days or afterwards, to dispute the pauper's occupation, we are of opinion, that this residence was sufficient, and that the orders, which proceeded upon the ground that it was not, ought to be quashed. Both Orders quashed. 1819. The KING against The Inhabit ants of STAPLEGROVE. The KING against AMOS. INDICTMENT against the defendant, as the governor of the house of correction of the county of Lancaster, situate at Liverpool, in the said county, for a misdemeanor, for refusing to deliver up to Thomas Rowe, one of the constables of the said borough of Liverpool, pursuant to an order of the court of quarter sessions of the said borough, then sitting, one James Crookham, then in the defendant's custody in the said house of correction, for the purpose of the said James Crookham being conveyed by the said Thomas Rowe to the said court of quarter sessions of the said borough, liberal construction. And, therefore, where justices of a borough, con tributory to the county rate, have committed prisoners to the county house of correction for offences cognizable within the county, the justices, at their borough sessions, have a right to order such prisoners to be brought before them for trial there. Quære, also, where a county magistrate, having concurrent jurisdiction, has committed a prisoner for an offence within the borough, whether the borough sessions have not the same power of ordering such prisoner to be brought before them for trial. VOL, II. N n there |