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intitled must go into an account, and give bond. The right is against the personal representative of the original testator or intestate. You are suing at law for that which is not recoverable at law. You sue the defendant for that which did not charge his testator. The only act done by any one, is done by the defendant, and you sue him as the representative of Benjamin Jones. There was no consideration for the promise. The action is misconceived in both respects.
HOLROYD, J.-An action will not lie for a distributive share.
LITTLEDALE, J.-The statute shews that an action will not lie for a distributive share; nor will an action lie upon an express promise without a new consideration. Such an action was never thought of till those cases in Cowper.
BAYLEY, J.-A mere promise will not sustain an action(a).
Erskine. There was no leave to move, as to the 731. (b).
BAYLEY,J.-Then have we the power of directing a nonsuit to be entered ? It has a different effect as to costs.
Rule absolute for a new trial (c).
(a) As to the doctrine concern- 195. 101d. was not insisted on; ing nudum pactum, see Rann v. but the plaintiff obtained a verHughes, 7 T. R. 350, n; 4 Bro. dict upon new evidence, as to the P. C. 2d edition, 27; Hawkes v. residue of his demand. (Counsel Saunders, Cowp. 289; 1 Wms. for the plaintiff, Wilde, Serjt. and Saund. 211, n.; Brown v. Marsh, Bayly; for the defendant, C. F. Gilb. Rep. 154; Watkins's case, Williams and Manning). In Easter Hil. 3 H. 6, fo. 36, pl. 33.
Term, 1828, a rule nisi was ob. (6) Ante, 422.
tained to set this verdict aside on (c) On the second trial (Taunton the ground of surprise. Spring Assizes, 1828), the 731.
The King v. THE INHABITANTS of HERSTMONCEUX. The taking Two justices, by their order, removed James Start, Suof a tenement sannah his wife, and their three children, from the parish a year, the
of All Saints, in the town and port of Hastings, to the rent to be paid weekly, but
parish of Herstmonceux, both in the county of Sussex: and
the Sessions, on appeal, quashed the order as to one of to be at liberty to give three the children, she being illegitimate, and confirmed it as months' notice from
to the other paupers, subject to the opinion of this Court, any quarter day, is a upon the following case : yearly hiring within 6 Geo.
On the 20th December, 1827, the pauper, James Start, 4, c. 57.
being then settled in Hertmonceux, agreed with John Foster, to take a house in the parish of All Saints, Hastings, at twenty guineas a year, the rent to be paid weekly, and either party to be at liberty to give three months' notice from any quarter day, and at the expiration thereof, to determine the tenancy. The pauper continued a year
in the occupation of the premises, and paid a full year's rent.
Long and Capron, in support of the order of Sessions. The question in this case is, whether the pauper acquired a settlement in the parish of Hertsmonceux, by the renting of a tenement, pursuant to the requisites of the statute, 6 Geo. 4, c. 57. (a). The Sessions have decided that he
(a) Which came into operation in such parish or township, at and the 22d June, 1825, and which for the sum of 101. a year, at the enacts, “that no person shall ac- least, for the term of one whole quire a settlement in any parish or year ; nor unless such house of township maintaining its own poor, building, or land, shall be occuby or by reason of settling upon, pied under such yearly hiring, and renting, or paying parochial rates the rent for the same, to the for any tenement, not being his amount of 101., actually paid, for or her own property, unless such the term of one whole
year tenement shall consist of a sepa- least, provided always that it rate and distinct dwelling-house or shall not be necessary to prove the building, or of land, or of both, actual value of such tenement." bona fide rented by such person,
did not, and it is confidently submitted that their decision is right.
The act requires a bonâ fide renting, at 101. a year; which the facts stated in this case entirely fail to shew. The tenancy created might endure for a year, but there was nothing in the agreement making it binding upon either party that it should be so. [Bayley, J. But it did endure for a year, in point of fact; and, then, is not the statute satisfied ? Where there is a general hiring, at weekly wages, with an agreement for a month's warning, and a year's service is performed, that is a yearly hiring, (a). Is not that an analogous case with the present?] Such a contract would, doubtless, be considered, by construction of law, a contract for a year; but it is submitted, that the cases are very distinguishable. As the rent, here, was to be paid weekly, the statement that the house was taken “at 20 guineas a year,” can only mean that the house was taken at the rate of 20 guineas a year, that is, at so much a week as would, at the end of a year, amount to 20 guineas. There was, therefore, no yearly rent here, which the statute clearly requires. · Neither was there a taking for the term of a year. Either party might have determined the tenancy at the end of six months; but the taking required by the statute is an unconditional one: one that it is not possible for the tenant to determine, before the end of a year. All the statutes upon
this subject, shew the meaning of the Legislature to have been, that the party claiming a settlement by renting a tenement, shall have come into the parish, intending to be a permanent resident there. Thus, the preamble of the 13 and 14 Car. 2, c. 12, states, that “ poor people are not restrained from going from one parish to another, and therefore do (a) It has been held, that a
There was, however, no hiring for an indefinite period, at agreement for a month's warning six shillings a week for the winter, in that case, though the pauper and nine shillings a week for the once gave a month's notice of his summer, is not a yearly hiring. intention to quit, which was not Rer v. Warminster, 9 D. & R. 70; 6 B. & C. 78; 4 D. & R. M. C.
endeavour to settle themselves in those parishes 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,” &c.; and the subsequent statutes of 59 Geo. 3, c. 50, and 6 Geo. 4, c. 57, are in the same spirit, and lay down, both of them, one and the same rule, namely, that the tenement shall be hired for a year, at a yearly rent, and be occupied, and the rent paid, for a year also. Here that rule has not been complied with-the house was not hired for a year, nor was the rent yearly; and the fact of the house having been occupied for a year, and rent for a year paid, will not cure the defect in the original agreement.
Bolland, contrà. It is impossible, by any operation of figures, to divide the sum of twenty guineas into aliquot parts, so as to make equal weekly payments of it (a); a fact which shews most clearly, that a yearly, and not a weekly tenancy, was contemplated by these parties. The act contains three requisites for the acquiring a settlement by renting a tenement—first, that the tenement shall be rented at 101. a year, at least, for the term of a year; secondly, that it shall be occupied for a year, under such yearly hiring; and thirdly, that rent, for a year, shall be actually paid. All these have been complied with in the present case, for there is nothing in the statute requiring that the terms of the contract shall be such as to invest the tenant, from the moment of making the contract, with a perfect right to a settlement. The plain intention of these parties was to create a yearly tenancy, defeasible indeed; but which has not been defeated. The pauper was tenant of the house for a year, at the yearly rent of twenty guineas ; he has occupied the house during a year
(a) 20 guineas, divided by 52, over-divided by 365, will give will give 85. 03, and 36 farthings 1s. 1d. #, and 85 farthings over.
and paid rent for a year: consequently he has satisfied all the requisites of the law, and has acquired a settlement.
The judgment of the Court was now delivered by
Bayley, J.—The pauper being settled in Herstmonceux, took a tenement in Hastings at 211. a year. He clearly acquired a settlement in Hastings, provided this was a renting for a whole year, within 6 Geo. 4, cap. 57, which requires that the tenement be bona fide rented for the term of one year. This statute repeals 59 Geo. 3, cap. 50. There is nothing in the preamble of 6 Geo. 4, which shews that it was then in the contemplation of the legislature to require more than what would constitute a tenancy for a year. The recital in the 6th Geo. 4, is “Whereas the settlement of the poor has been made in some instances to depend upon the annual value of tenements which they may have rented, or upon the value of tenements, in virtue of which they have paid parochial rates. And whereas the ascertaining such value in such cases has given rise to very expensive litigation, and whereas doubts have been entertained whether an act made in the 59th year of King George 3, entitled “An act to amend the laws respecting the settlement of the poor, as far as regards renting tenements,”. has been effectual for the purpose of altering the law in respect of the necessity of proving the annual value of tenements so rented : and it is expedient that further provision be made relative thereto.” Here we find no recital of any inconvenience having arisen where the tenancy was originally defeasible at certain periods. There is nothing in the act to shew that by the term “one whole year,” any thing more was meant than what the law considers to be a tenancy for a year. The question in this case will therefore be, whether this was a tenancy for a year; and I cannot entertain any degree of doubt but that this is primâ facie a