WEST BRITON AND CORNWALL ADVERTISER 11 July, 1851 CORNWALL MIDSUMMER SESSIONS - (Concluded from our last paper) On Thursday, the 3rd instant, the last day of the Sessions, the following appeal case was heard: PERRANARWORTHAL, appellant, Mr. DARKE and Mr. GENN; KENWYN, respondent, Mr. SHILSON and Mr. HOCKIN. This was an appeal against an order for the removal of MARY DAVEY and two of her children from respondent to appellant parish. Mr. Darke stated the grounds of appeal on which appellants relied. They admitted the birth settlement of pauper's husband in appellant parish; but set up another settlement described in the sixth ground of appeal. This was a settlement derived by pauper's husband from his father, who had become possessed of an estate in Kea, by a lease granted in 1795 by the Earl of Falmouth. Pauper's husband, MARTIN DAVEY, lived with his father on this estate till the father's death in 1804, when the son was sixteen years of age. Appellants also relied on their ninth ground of appeal, which stated that relief had been granted by the parish of Kea to the widow of the father of pauper's husband, which therefore was an acknowledgment of the settlement of JOHN DAVEY in Kea. The acknowledgment was alleged to have thus arisen: whilst the father of pauper's husband was living on the estate in Kea, he married the second time, and at his death in 1804, his widow went to live in Gwennap, and whilst there, between the years 1818 and 1834, she was relieved by the parish of Kea. Connecting that relief with the husband's settlement by estate in Kea, appellants contended that it was an acknowledgment of his son (Martin Davey's) settlement, the son having married previously to this relief being given. The seventh ground of appeal alleged that pauper's husband had himself acquired a settlement in Kea, by possession of the leasehold estate in which an interest had been bequeathed to him by the will of his father, and on which he had resided some years; but having subsequently removed to Plymouth (more than the ten miles distance specified in the act), and having become dispossessed of the Kea estate, appellants did not rely on this point. The eighth ground set out in another way the settlement of the father of pauper's husband. John Davey built a dwelling-house, and had enclosed, or was to hedge in and enclose, three adjoining acres of land in the parish of Kea. The lease from the Earl of Falmouth was introduced, which stated that in consideration of this, John Davey was granted all those premises for the full term of ninety-nine years at the yearly rent of 8s. Such a property from its nature would confer a settlement by estate upon the father of pauper's husband. The pauper's husband, having resided upon that estate to his father's death in 1804, and being then sixteen years of age, he retained permanently the settlement which his father had gained for him, unless he gained a settlement for himself. If then the father gained a settlement by estate, his son retained the same settlement; for though a man, by removal, may lose a settlement by estate which himself had gained, yet he does not lose a derivative settlement by removal, and in this case the son did not lose his derivative settlement by his removal to Plymouth. Mr. Darke cited a case in confirmation of this, and next adverted to the statute of Charles the Second, which was the origin of the law of settlements, but which referred simply to the removal of a pauper coming to inhabit a tenement under the yearly value of GBP 10. As early, however, as 1723, as cited in Burn, p. 862, came the decision that if a man were residing in a parish in which he was possessed of an estate of his own, he should not be removed: the distinction being then drawn, for the first time, between the ownership of an estate and the renting of a tenement as contemplated under the statute of Charles; and it was then decided that both the nature of the tenure and the duration of the estate were immaterial, it being sufficient if the owner of the estate had been resident for forty days. It was held to be wholly immaterial, as to settlement by estate, whether it were freehold, or copyhold, or for life, or for years; and subsequently, it was further ruled that if the party was not the legal but only the equitable owner, that still the property would confer the settlement, whatever were its duration or the nature of its tenure. Mr. Darke then referred to the case of King V. St. Mary, Whitechapel, Archbold, last edition, p. 545, which he contended would justify a like decision in the present case, wherein a man was possessed of an estate for which he paid a nominal rental. That case, however, was decided previously to the statute, 9th George I. Having then seen that such a holding would confer a settlement previously to the 9th George I, how was the law affected by that statute? The 9th George I, c.7, sec. 5, enacted that "no person or persons shall be deemed, adjudged, or taken to acquire or gain a settlement in any parish or place, for or by virtue of any purchase of any estate or interest in such parish or place, whereof the consideration for such purchase doth not amount to the sum of GBP 30, bona fide paid." Now the decisions upon that statute had been, that it refers only to cases where the consideration for the purchase was merely and solely a money consideration; if the consideration for purchase consisted of anything else, except money, the case was not affected by the statute; the settlement was what it would have been previously to the 9th George I. In support of this view, Mr. Darke cited King V. Marwood, Burn, 903, in which a father had conveyed to his daughter "for natural love and affection" and the Court decided that the case was one which was not affected by the statute of 9th George I. Another decision was in King v. Lifton, 3 Term reports, where the consideration was partly money, and partly "natural love and affection"; and it was decided that the case was unaffected by the 9th George 1. The next was a strong case, that of Lidlinch, Barnewall and Adolphus, which was held to be not within the statute, because the consideration was the surrender of a former lease; all which decisions established, that in order to bring a case within the statute of 9th George 1, the consideration must consist wholly of money. His friends on the other side might contend that in the case before the court, the rent was the consideration of purchase, and that the rent alone was to be considered a pecuniary consideration. His answer to that was, under the cases cited, that although the rent might be held to have been a part of the consideration, yet the actual consideration was the equivalent of the man having built a house, and enclosed, or having to enclose land. The consideration, therefore, was not money, and the case could not be affected by the statute 9th George 1, and if not, the tenement would confer a settlement as before the passing of that statute. But even assuming that by possibility the case were held to be within the statute of 9th George 1, he would then urge that the consideration of GBP 30 had been paid for the estate. On this point he cited Queen V. Carlton, 4, New Sessions case, 1849, and argued, on the authority of that case, that as the house was built before the lease was granted, and as the lease stated the building of the house was part of the consideration, he should show that the value was more than GBP 30; that more than that sum had been expended before JOHN DAVEY became the purchaser, for in a legal sense he was not the purchaser till the lease was made to him. On either of those two views, whether the case did not come within the statute, or whether it did, as the purchase consideration exceeded GBP 30, he contended that the father of pauper's husband had gained a settlement which he gained derivatively from his father. Appellants next relied on an acknowledgment of the settlement of the father of pauper's husband in Kea, by relief given by that parish to the father's second wife, as already stated in the ninth ground of appeal. Mr. Darke quoted Queen v. Brighton, vol 2, New Sessions cases, p.7, and contended that he had a right to connect this relief with the knowledge of the parish officers that the husband of the party relieved had possessed an estate in Kea. If therefore he should fail in strict proof with regard to the estate, he should still ask the Court to come to the conclusion that the relief was granted in consequence of the settlement which was known to exist. The lease granted by the Earl of Falmouth was then put in, and MARY DAVEY, GRACE KELLOW, and ANN BEALES were examined. Mr. SHILSON objected that the relief given was merely a declaration of opinion on the part of the parish officers of Kea, which opinion, whether right or wrong, was no evidence affecting a third party. Mr. DARKE replied it was not a declaration of opinion, but a statement of fact that was sought to be elicited. The objection was overruled, and after the evidence had been given, Mr. Shilson addressed the court for the respondents. [He addressed each of the points in order, contending that JOHN DAVEY, being the original lessee, could not have acquired a settlement, because while a settlement might be acquired under a lease, it could not be acquired by the original lessee, citing King V. Warblington and King v. Hornchurch in support of his argument.] The lease in question was in fact a common lease, of which rent was the consideration, and whether the house was built before or after the lease was perfectly immaterial. He never yet heard that a lease granted for a waste spot of land, and to build a house, would confer settlement. He appealed to the Bench whether it was not contrary to all former practice and experience, that an estate of this kind should confer a settlement. As to the question of the acknowledgement of settlement by relief, which appellants had set up, the son was emancipated at his father's death, and seventeen years had elapsed after the relief was given to the father's widow, the step-mother of the pauper; it would be monstrous to conclude thereupon that it was given in consequence of the father's settlement; it might have been in respect of her first husband's settlement,or a settlement acquired by herself as a widow. Mr. Darke replied, observing that as his friend had appealed to the former practice of the court, he might also state, on his part, that he was fortified with the opinion of an eminent settlement lawyer, Mr. PASHLEY. The court then retired for about half an hour to consider, and on their return the Chairman said - The court is of opinion that the lease is not within the statute 9th George I. Order quashed; no maintenance; common costs. On the application of Mr. Shilson, the Court granted a case for the decision of the superior court, as to whether the lease was of that description as to come within the statute. On the question of acknowledgment by relief, we understood the opinion of the court was with respondents. Julia Mosman, OPC for St.Austell,Charlestown, and Treverbyn Website at http://freepages.genealogy.rootsweb.com/~staustell W. Briton newspaper transcripts at http://freepages.genealogy.rootsweb.com/~wbritonad Please visit the OPC website at http://cornwall-opc.org