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1828.

DoE

v. Price.

ing the principle, of granting new trials, merely for the purpose of letting in evidence which might and ought to have been produced at the former trial. We do not say that the questions now submitted to the Court are not material and worthy of consideration; we only say that they do not furuish grounds for granting a new trial; and, in order to prevent a change of possession, and the hardship which would follow therefrom to the defendant, we shall impose certain terms upon the lessor of the plaintiff. This rule for a new trial will be discharged; the plaintiff to be at liberty to sue out a writ of fieri facias for the costs, but to be restrained from suing out a writ of possession until the first day of next Michaelmas term, in order to give the defendant in the mean time opportunity to bring an ejectment; and, in that action, the judgment in the present action not to be given in evidence.

Rule discharged accordingly.

The King v. The INHABITANTS of ROLVENDEN.

ON appeal to the court of quarter sessions for the county A pauper of Kent, against an order of two justices, for the removal agreed with an

innkeeper to of John Field, from the parish of Lynsted to the parish of serve him as

ostler, at Rolvenden, both in the said county; the order was con- 2s. a week in firmed, subject to the opinion of this Court upon the fol- the summer,

and 1s. 6d. a lowing case : --

week in the In the month of June, 1820, the pauper agreed with winter: Held,

that this was a William Masters, an innkeeper, living in the parish of Rol- weekly hiring venden, to serve him as an ostler. The pauper and his a year's service

only, and that master bargained by the week, at 2s. per week in the sum- under it con

ferred no setmer, and 1s.6d. per week in the winter. The pauper entered tlement. into the service on the 22d of June, 1820. He received 2s. per

week till the following Michaelmas; from Michaelmas to Lady-day, 1821, 1s. 6d. per week; and from Lady

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1828. day to Michaelmas, 9s. per week. On the evening of the

23d of February, 1823, the pauper left his master's service, The KING

in consequence of a disagreement that took place between Rolvenden. his master and him on the morning of that day. The ques

tion for the opinion of the Court is, whether by the above contract and the service under it, the pauper gained a settlement in the parish of Rolvenden.

D. Pollock, in support of the order of sessions. Unless this case can be distinguished from that of Rer v. Warminster (a), it must be admitted that there was no yearly hiring here, and therefore that the order of sessions was wrong; because it was there decided, that a hiring for an indefinite period, at 6s. a week for the winter, and Is. a week for the summer, was not a yearly hiring, and that a year's service under it would not confer a settlement. But it is submitted that the two cases are distinguishable. In Rer v. Warminster, the pauper asked 201. a-year wages, which the master refused to give, and they afterwards agreed for weekly wages; so that there was an express proposal for a yearly hiring on the one side, and an express repudiation of it on the other. But in the present case nothing occurred to rebut the presumption that the biring was intended to be for a year; and the agreement for a different rate of wages at different seasons of the year, leads strongly to the inference that both parties contemplated a continuance of the service for a year. If so, no time being mentioned, the hiring was a general one, a year's service under which converts it by operation of law into a yearly hiring, and confers a settlement.

Law, contrà, was stopped by the Court.

BAYLEY, J.-I cannot distinguish this case from that of Rex v. Warminster. The argument last advanced to-day was relied upon there, but was not acted upon by the Court.

(a) 9 D. & R. 70; 6 B. & C. 77; 4 D. & R. M. C. 197.

1828.

The KING

V. ROLVENDEN.

There is no weight in that argument. The hiring here is for an indefinite period, at weekly wages, which is a weekly hiring. The mere arrangement that the wages shall be at one rate in the summer, and at another in the winter, does not shew that the parties contemplated a service to endure through the summer and the winter, and, therefore, that they intended a hiring for a year; but shews, only, that they intended that if the servant, being hired at weekly wages, should remain till the sunimer, he should then have so much per week, and if he should remain till the winter, he should then have so much per week. The true meaning of such an arrangement is merely this: that the servant's wages, as a weekly servant, are to be regulated by the season. Looking at the terms of this contract altogether, they seem to me, clearly, to constitute only a weekly hiring, no service under which could confer a settlement. The order of sessions, therefore, must be quashed.

The other Judges concurring,

Order of Sessions quashed.

The KING v. The INHABITANTS of KIBWORTH

HARCOURT. ON appeal made to the court of quarter sessions for the settlement by

To acquire a county of Leicester, against an order of two justices, for the renting a tene

ment under 6 removal of James Asker, Elizabeth his wife, and their five Geo. 4, c. 57, children, from the parish or township of Kibworth Beau- the renting

need be bonâ champ, to the parish or township of Kibworth Harcourt, fide only as

between the both in the said county; the order was confirmed, subject landlord and to the opinion of this Court upon the following case :- tenant; and

the whole rent After proof, primâ facie, of a settlement in the appel- need not be lants' township, it appeared, that about Lady-day, 1825, paid by the

person renting the tenement, it is enough if it be actually paid.

v.

1828. the pauper took of one Thomas Bradshaw a house and

garden, situate in the towuship of Kibworth Beauchamp, The King

at the rent of 10l. for a year, to commence at the ensuing Kıbworth Michaelmas.

The house and garden were then in the oc-
HARCOURT.

cupation of one Cooper, whose term in them expired at
Michaelmas; but Bradshaw said he should expect Cooper
to stand as tenant till Michaelmas, and should expect the
rent when one Matthew Waterfield, who was tenant of
other premises to Bradshaw, paid his; and it should all be
put in one receipt. The pauper was let into possession
immediately by Cooper, and paid rent up to Michaelmas to
Cooper; after which time he continued to occupy the pre-
mises, and paid rent, as after-mentioned, up to Michaelmas,
1826. Early in the pauper's tenancy, Matthew Waterfield,
then being church warden of the township of Kibworth
Beauchamp, called upon the pauper, and represented to
him that Bradshaw had let the pauper's premises, together
with other premises, to him, Waterfield; and that the pau-
per was thenceforth to pay the rent quarterly to him. At
the same time, Waterfield told the pauper that he should
make a reduction in his rent of 8s. a year, to which reduc-
tion the pauper assented, and a rent of 91. 12s. was accord-
ingly paid by the pauper to Waterfield, in the course of that
year, by four quarterly payments ; namely, the first two
payments to Matthew Waterfield, and the last two, after
the death of Matthew, to John Waterfield, his brother and
successor in the premises. At the end of the year, a sum
of 551. was carried by John Waterfield to Bradshau, the
landlord, which sum included 101. for the pauper's rent of
the house and garden, for the year just completed, and the
residue was composed of rent for the other premises occu-
pied by Waterfield. Bradshaw returned 5l. to Waterfield,
and gave him one receipt for the whole rent. It further
appeared, that John Waterfield was reimbursed out of the
parish funds the sum of 8s., paid by him to the landlord,
over and above the 91. 12s. The court of quarter sessions
found that there was fraud in this case, on the part of the

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township of Kibworth Beauchamp, but that neither the 1828. landlord, nor the pauper, was a party to the fraud.

The King

7. Reader and Homfrey, in support of the order of sessions. HarcourT.

KUBWORTH The sessions were right. The pauper did not acquire a settlement by renting a tenement in Kibworth Beauchamp, either under the 59 Geo. 3, c. 57, which was in force when the contract was made, or under the 6 Geo. 4, c. 50, which was in force when the rent was paid. The former act requires that the rent of 10l. for the tenement shall be actually paid, for one whole year, by the person hiring the same; whereas here the pauper, who was the person hiring the tenement, himself paid only 97. 125., the residue, 8s., being paid by Waterfield, the church warden. The latter act does not require that the whole rent shall be paid by the person biring the tenement, but it does require that the tenement shall be bona fide rented by such person, at and for the sum of 10l. a year. Now that requisition has not been complied with here, because the sessions have found that there was fraud in the case; and though they have also found that neither the landlord nor the pauper was a party to the fraud, still the tenement cannot be said to have been bonâ fide rented, because fraud, wherever it arises, vitiates the whole

contract.

Marryat, Dwarris, and Hildyard, contrà, were stopped by the Court.

Bayley, J.-I am of opinion that the pauper did acquire a settlement by renting a tenement in the township of Kibworth Beauchamp, under the 6 Geo. 4, c. 57. The renting, upon which the question in this case depends, did not commence till Michaelmas, 1825, after that act came into operation; therefore, the former act of 59 Geo. 3, C. 50, does not appear to me to bear upon

The new act does not require that the whole rent shall be paid by the person hiring the tenement, but only that it shall be

the case.

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