Queen's Bench. 1847. The QUEEN against The Inhabitants of MENDHAM. ON appeal against an order of two justices, whereby Septima Durrant, the widow of William Durrant, and her four children, were removed from the parish of Elm, in the Isle of Ely, to the parish of Mendham, in the counties of Norfolk and Suffolk, the Sessions confirmed the order, subject to a case. Wednesday, January 27th. On an appeal, the alleged settlement depended on the occupation of a feeding of a been fed in pasin that parish during the The pasture season, ture on the farm The case stated that the pauper was removed to Mendham as the place of her late husband's settlement, he being alleged to have acquired a derivative settlement there from his father, Charles Durrant. examination of the father was set out. He deposed, yard during and in the straw winter; and the pasture-feeding sufficient to make up the settlement: but it was expressly Sessions that, found by the at the time of the hiring, nothing was said as to the manner in among other things, as follows. "About thirty two pas years ago,' "I had a cow, and I hired of Mr. Ben- was of value jamin Chaston, the elder, late of Mendham aforesaid, farmer, deceased, the keep of my cow upon the growing produce of the pasture land on his farm in the parish of Mendham aforesaid, during the pasture season, and its keep in the straw yard, upon hay and straw, during the winter season, at the rent of 4s. 6d. a week. The cow was depastured under this contract, upon the said Benjamin Chaston's grass lands in the parish Mendham aforesaid, from a little before the 1st May, about thirty two years ago, until a little after the old Michaelmas day following." "After the went into the straw yard, I rented the keeping of the the cow should of of cow which, or the particular lands whereon, the cow was to be fed. Held, that the Sessions were not entitled to infer a contract that be pasture-fed. Volume IX. 1847. The QUEEN V. The Inhabitants of MENDHAM. cow as aforesaid, under the above contract, for about three years, and paid all the rent for it. During the whole time that I rented the keep of the cow as aforesaid, I was the tenant of, and resided in, the cottage that I now live in, in the said parish of Mendham, which was at that time of the annual value of 5l., to occupy as tenant thereof. The keep of the cow upon the growing produce of the pasture land, as aforesaid, was, at and for the time I hired it, each year, of the value of 57. and upwards. I slept in the house that I so occupied in the said parish of Mendham for considerably upwards of forty nights during each of the years that I hired the growing produce of the pasture land to be eaten off by my said cow as aforesaid.” One of the grounds of appeal was, that the said Charles Durrant never did hire the keep of a cow in the parish of Mendham of Benjamin Chaston the elder, as in his examination stated. On the trial of the appeal, it was proved that, about thirty three years ago, the said Charles Durrant went to live in a cottage belonging to Benjamin Chaston the elder, who then occupied a farm in the parish of Mendham, and worked for him. That, after he had lived in the cottage a year, Benjamin Chaston the elder gave up the farm; and it was taken by his son Benjamin Chaston the younger. The said Charles Durrant continued in the cottage, and worked for Benjamin Chaston the younger; and it was after Benjamin Chaston the younger had taken the farm, that he hired the cow; and the cow was hired of Benjamin Chaston the younger, and not of Benjamin Chaston the elder. That the cow was kept, in the pasture season, on the pasture lands of the said farm, which were partly in the said parish of 1847. The QUEEN V. Mendham, and partly in the adjoining parish of Withers- Queen's Bench. dale, and, in the winter season, in the straw yard. That he paid 4s. 6d. a week for the feed, which, during the pasture season, was worth 51. a year and upwards. The InhabitThat the said Charles Durrant put the cow where there was feed for her; but nothing was said, either by his master or himself, as to the manner, or on what particular lands, the cow was to be fed. It was objected by the appellants that, as the examinations stated the contract for the feed of the cow to have been made with Benjamin Chaston the elder, it was not competent for the respondents to give evidence of a contract with Benjamin Chaston the younger; and, also, that there was no proof of any contract that the cow should be pasture-fed, or that it should be fed on lands in Mendham. The Sessions decided that there was not a material variance; and that there was proof of a contract; and confirmed the order of removal. If the Court of Queen's Bench should be of opinion that it was not competent for the respondents, under these examinations, to give evidence of the contract for the feed of a cow with Benjamin Chaston the younger, or that there was no evidence of any contract that the cow should be fed upon the growing produce of the land or that the cow should be fed on lands in Mendham, and that such a variance from the statement in the examinations was fatal, then the said order of Sessions and the said order of removal were to be quashed; otherwise to be confirmed. Prendergast and Couch, in support of the order of No difficulty arises from the contract (if proved), and the feeding in fact, having extended to sessions. ants of MENDHAM. Volume IX. 1847. The QUEEN V. ants of MENDHAM. another parish besides the appellant parish; because the value of the tenement in the appellant parish must be considered to be found by the Sessions. As to the The Inhabit- contract being with Chaston the younger, not Chaston the elder as stated in the examinations, the Sessions have decided that the variance is not material, provided the contract be proved; and they are the proper judges as to the materiality of the variance; Regina v. The Justices of the West Riding (a). The question therefore is, whether a contract to feed on the pasture lands was proved: that is a question of fact on which the decision of the Sessions is conclusive, unless there be a total want of evidence (b). Here it will be said that no express stipulation appears. But the Sessions were at liberty to infer a contract from the conduct of the parties. In Rex v. Darley Abbey (c) it was stipulated that the pauper should have the milking of a particular cow for the season; nothing was said as to how or where the cow should be fed, except that the agent of the landowner who let the cow was to point out on what pasture she was to be first milked; and, the cow having been pasture fed in fact, the Court held this to be evidence of a contract that it should be so fed. So from service for a year a contract of hiring for a year may be implied; or a hiring of a house from occupation and payment of rent. Pashley and Prideaux, contrà, were stopped by the Court. (a) 10 4. & E. 685. (b) See Regina v. Lydeard St. Lawrence, 11 A. & E. 616. 621. (c) 14 East, 280. See Rer v. Nacton, 3 B. & Ad. 543., judgment of Falteson J.; Regina v. Cumberworth Half, 5 Q. B. 484. Lord DENMAN C. J. I was counsel in Rex v. Darley Abbey (a), and thought myself ill used because a tenement like this can originate only in contract and cannot be created by mere occupation, and I could not see any hiring. But there, from the declaration that the agent was to point out the pasture on which the cow was to be first milked, an understanding was inferred that it should be fed on the pastures: it became a question of weight of evidence. Here we say, not that the acts of the parties are inconsistent with a contract, but that there is no evidence of the acts having been done in pursuance of a contract. PATTESON J. It appears that there really was no contract; and the Sessions are therefore wrong. The examinations, it is true, shew a contract: but they evidently give us only what the person who examined put into the mouth of the person examined. The question for us is on the evidence at sessions. COLERIDGE J. I am of the same opinion. Rex v. Darley Abbey (a) is so clearly distinguishable that it does not interfere with our decision. I should, however, go the length of saying that that case was wrongly decided. The inference there was that what passed at the time shewed an understanding that the cow was to be pasture fed. Here we have it distinctly that nothing was said. In this case, if, the morning after the hiring, the cow had been found in the farm yard feeding on produce brought from fifty miles off, could that have been called a breach of contract? Then the practice is as consistent with a permission given (a) 14 East, 280.. Queen's Bench. 1847. The QUEEN V The Inhabit ants of MENDHAM. |