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1827.

The KING

v.

YNYSCYN

HAJARN.

and became merely tenant from year to year, of premises not worth 107. a-year. If so, her interest in the land did not vest in her husband by their marriage, so as to confer a settlement upon him by residence for 40 days upon it. It has, indeed, been held, that where a woman, before marriage, purchased a leasehold estate for 67., the estate, on her marriage, vested by operation of law in her husband, who gained a settlement by a 40 days' residence ; Rex v. Ilmington (a); but there the estate purchased was a lease for years: and there is no case which has decided, that a mere tenancy from year to year will have the same operation. Besides, it is quite equivocal and uncertain upon the face of this case, what interest, if any, the father of the pauper's wife had in the land, or could bequeath at his death; and before the Court can say that such an interest passed to the daughter as vested in her husband on their marriage, they must at least know what interest there was in the father, from whom the daughter took.

R. V. Richards, contrà. The case finds that the father resided on a farm as tenant, and held it at the rent of 31. 5s.; that he bequeathed all his estate and effects to his daughter; and that she continued to reside on the farm, from the time of his death until her marriage. The taking of the land, afterwards mentioned, clearly means the taking as executrix under the will. It must, therefore, be presumed, that the father had such an interest in the farm as he could'devise, and the daughter could take, as an estate for years; and if so, that clearly vested in the husband by operation of law by the marriage, and a 40 days' residence on the farm, though its value was under 107. a-year, gave him a settlement. But, even if the daughter re-took the land, and was interested in it, not as executrix, but in some other mode, her interest, be it what it might, vested in her husband as her assignee by operation of law. If that interest was an estate for years, it is (a) Burr. S. C. 566. 2 Bott. 471.

admitted, upon the authority of Rex v. Ilmington (a), that it conferred a settlement on her husband; and Rer v. Netherseal (b), and Rex v. Stone (c), are authorities to shew, that if her interest was only a tenancy from year to year, the result would be the same.

BAYLEY, J.-I think it must be inferred, from the facts of this case, considering them altogether, that the pauper's wife took the land, under her father's will, as tenant from year to year. If so, her interest in the land passed to the pauper upon their marriage, by operation of law, and a 40 days' residence upon it conferred a settlement on him. Rer v. Stone, is an authority expressly in point in this view of the case, because it was there held that the executor of a tenant from year to year, of an estate under 107. a-year, might gain a settlement by residing on it 40 days, though he had not proved the will at the time; and the husband of an executrix, becoming by operation of law the assignee of her interest, must stand in precisely the same situation as the executrix herself. Then, whether the pauper's wife took as executrix, or took anew in her own right as tenant, is perfectly immaterial, because her interest equally passed to her husband by operation of law. This point was considered in Rex v. Houghton le Spring (d), where a distinction was taken between the cases where a party came to his property by his own act, or by operation of law. It was there said to be the established rule, that though a person cannot acquire a settlement by a purchase for less than 301. paid, yet if he take such estate by devise, he may. So, though he cannot gain a settlement by renting a tenement of less value than 107. a-year, yet, if such estate devolve upon him by operation of law, he may acquire a settlement by 40 days' residence upon it; and it signifies not, whether he be a tenant from year to year, or a tenant for a term of years, the distinction being one

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1827.

The KING

บ.

YNYSCYN

HAIARN.

1827.

The KING

V.

YNYSCYN

HAIARN.

of words rather than of substance (a). I am, therefore, of opinion, that the pauper acquired a settlement in Aberdaron, by 40 days' residence upon the farm in that parish, whether his wife was interested in it as executrix, or as a new tenant, and whether for a term of years or as yearly tenant only; and therefore, that the order of sessions must. be quashed.

HOLROY D, J., and LITTLEDALE, J., concurred.

Order of Sessions quashed (b).

(a) Doe dem. Westmoreland v. Smith, post.

(b) Vide Lewin's Settlement Law, 404, et seq., and the cases

there collected.

Where a canal passes

through several parishes, and the tonnage dues

earned in each vary in amount, the

proprietors of the canal must

be rated to the poor of each

parish in proportion to the

The KING v. The INHABITANTS of KINGSWINFORD.

4.6. 7. BH236

By
a rate made for the relief of the poor of the parish of
Kingswinford, in the county of Stafford; the Company of
Proprietors of the Dudley Canal Navigation, were assessed
as follows:-

Dudley Canal Company,
for canal, reservoirs, bath,
tonnage dues, &c.

Rate,

Annual value,

6041. 2s. 2d.

251. 3s. 4d.

The sessions, on appeal, reduced the rate to 97. 16s. 11d., subject to the opinion of this Court, upon a similar case to that stated in Rex. v. The Dudley Canal Company (c), with

amount of ton-
nage dues ac- the following additions :—
tually earned

there, and not according to

the proportion of the whole amount earned

The said Company of Proprietors, are empowered to take different rates of tonnage upon those parts of the said canal, which are made under each of the said recited acts of the 16th, 25th, and 33rd Geo. 3. The land occupied whole line of by the said Company of Proprietors, in the said parish of Kingswinford, for the purposes of the said canal, is

along the

the canal.

(c) 7 D. & R. 466.

12a. 2r. 36p.; the whole of which was taken under the said recited act of 16 Geo. 3, and is one twelfth part of the land occupied by the said Company of Proprietors, for the purposes of the whole of the Dudley Canal, made under the said recited acts of 16th, 25th, and 33rd Geo. 3; and extending through the several parishes of Kingswinford, Dudley, Tipton, Sedgley, Rowley Regis, Hales Owen, and Northfield. The account of the tonnages arising upon the whole of the canal, made under the said recited acts, and of the expenses and outgoings thereon, is kept as one joint concern, and not separately, and the profits of the whole are divided among the proprietors, generally, according to their shares therein. The total amount of tonnage received by the said Company of Proprietors for the last year, on the whole of the said canal, after deducting the expenses, is 5670l. 13s. Id.; one twelfth part of which is 4727. 11s. 1d., a rate on one half of which sum, (2361. 5s. 6d.), at 10d. in the pound, is 97. 16s. 11d.: to which the sessions have reduced the rate. The tonnage received during the same period for goods, &c., carried on that part of the said canal, made under the said recited act of 16 Geo. 3, which is situate in the parish of Kingswinford, after deducting expenses, is 12087. 4s. 4d., and a rate made on the half of that sum (6047. 2s. 2d.), at 10d. in the pound, is 25l. 3s. 4d.; at which sum, the said Company of Proprietors are rated.

The question for the opinion of the Court is, whether the different parts or extensions of the said canal, made under the several hereinbefore recited Acts of Parliament, ought to be taken as one joint concern, as far as relates to the poor rates, or whether that part thereof made under 16 Geo. 3, ought to be rated as a distinct and separate concern. If the Court should be of opinion that the different parts or extensions of the said canal, made under the acts of 16th, 25th, and 33rd Geo. 3, form one joint concern for the purpose of rating, the order of sessions to be confirmed. But if they should be of opinion that such

1827.

The KING

v.

KINGSWIN

FORD.

1827.

The KING

v.

KINGSWIN

FORD.

part of the said canal, as was made under the act 16 Geo. 3, ought to be rated to the parishes through which it passes, as a separate concern, then the order of sessions to be reversed, and the amount of the rate to be altered to 261. 3s. 4d.

Russell, Serjt., and Whateley, in support of the order of sessions. The Dudley Canal Company are the proprietors of three lines of canal, each made under a separate act of parliament; but the three were afterwards incorporated into one, and now form one joint concern: for the receipts and expenses in respect of each are kept in one account, and the profits arising from them all are divided, generally, among the proprietors. The canal passes through several parishes, to all of which the proprietors admit that they are rateable; but they contend that the canal should be rated to all the parishes as one joint concern, for a proportion of the whole profits, and not to each separately, for the amount of the profits earned in each separate parish. The latter mode has been adopted in the parish of Kingswinford, and if that principle is to be acted upon generally, infinite confusion and difficulty will be the consequence. The tolls which are collected for goods which pass through this particular parish, are payable as a compensation for the use of the whole line of the canal, and not merely of that part which lies in that parish. The proprietors of the canal are rateable only as the occupiers of the canal, or of land covered with water, for their tolls, as profits arising out of the land so occupied. They are rateable, therefore, in every parish through which the canal passes, in respect of the land there situate and so used for the canal. The true principle of rateability is this-the land is to be rated to the relief of the poor in the parish where it is productive of profit to the proprietor, and in proportion to that profit; which may be considered in the nature of a rent, received by the proprietor for the use of his land within the parish. The

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