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![handle is hein.slavery/ssactsengr0066 and id is 1 raw text is: THE KING V. BENNEWORTH
section seems to contemplate the very case. No such inconvenience as that suggested
on the other side can arise, for the utmost extent to which the construction contended
for can go, will be to call upon the justices to remedy the disproportion existing in
the individual case brought before them ; and that they are empowered to do by the
proviso in the fourteenth section.
Abbott C.J. We are of opinion, that a power of appealing is given by the fourteenth
section of the 55 G. 3, c. 51, in a case like the present; and instead of thinking such
a power at variance with the object of that Act, we consider it the most convenient
construction that the statute can receive. The rule must therefore be made absolute.
Rule absolute.
[775] THE KING against THE INHABITANTS OF BENNEWORTH. Monday, May 31st,
1824. A pauper was hired for a year, and had by agreement a house and
garden, a rood of potatoe land, and the keep of a cow on his master's land.
After the pauper had served ten years, his cow failing in milk, the pauper
had in lieu of the cow two heifers kept for him, through the kindness of his
master, and not in consequence of any bargain. The potatoe land and the
keep of two heifers was of the annual value of 10!., but the potatoe land and
the keep of the one cow was of less annual value than 101.: Held, that the
pauper, by having the potatoe land and the keep of the two heifers, before
the passing of the stat. 59 G. 3, c. 50, gained a settlement : but, semble, that
by having the potatoe land and the keep of the two heifers after the passing of
the 59 G. 3, c. 50, he would not have gained a settlement.
Upon appeal against an order of two justices, whereby James Fletcher, his wife and
family, were removed from the parish of Benneworth, in the parts of Lindsey and
county of Lincoln, to the parish of Calcethorpe in the said parts and county ; the
sessions quashed the order, subject to the opinion of this Court on the following case :
In 1803, the pauper, James Fletcher (then a married man) was hired by yearly
hiring as a confined labourer in husbandry with Mr. Day of Calcethorpe, farmer. The
pauper had, according to agreement, a house and garden, and a rood of potatoe land,
and the keep of a cow on his master's land. The cow was instead of so much money
for wages. The pauper remained in Mr. Day's service eleven years, during which
time, namely, in the year 1813, the pauper's cow failed in milk, on which account,
through the kindness of his master, and not in consequence of any bargain, the pauper
had in the place of the former cow, two heifers kept for him by his master on his
master's land for about eleven months. The potatoe land and keep of the two heifers
were together of the value of 101. per annum and upwards. But the potatoe land and
keep of one cow were below that value. On leaving Mr. Day, the pauper went to live
as a confined labourer with Mr. Briggs at Scamblesby, [776] with whom he remained
five years. For the last three years of the pauper's service with Mr. Briggs, the
pauper was relieved in Scamblesby by the parish of Donnington on Baine. At the
expiration of the pauper's service with Mr. Briggs, the parish of Donnington on Baine
took him and his family to their parish, and put them into a cottage in the parish of
Benneworth, an adjoining parish, where they continued to relieve them till some time
in the year 1822. The pauper then became chargeable to the parish of Benneworth.
Scarlett, Balguy, and Empson, in support of the order of sessions. There was not
in this case any occupation of the land by the pauper as tenant, and that is essential
in order to give a settlement. The King v. Bowness (4 M. & S. 210), and Rex v. St.
John Glastonbury (1 B. & A. 484). If a man hires another at certain wages, and agrees
also to lodge and board him in his house, the servant is not the occupier of any part
of the house; and if he agrees to lodge and feed, and keep his cows upon his land,
the servant is not therefore an occupier of any part of the land. In Rex v. Bardwell
(2 B. & C. 161), it was held that the party must reside on some part of the tenement
in respect of which the settlement is claimed ; and also, that in order to gain a settle-
ment by the right to depasture cows, there must be a stipulation in the contract that
the cows should be pasture fed. In this case neither of these circumstances occur.
Besides, in order to give a settlement by coming to reside upon a tenement, there
must be some contract creating the tenancy. Here, the pauper acquired the right
to depasture the two heifers by the kindness of his master. In Rex v. Fillongley
(1 T. R.' 458), Buller J. con-[777]-sidered the pauper as having the tenement under an
2 B. & C. 775.](ViewImageLocal?handle=hein.slavery/ssactsengr0066&div=1&collection=&method=preview&ext=.png&size=3)