1812. Saturday, Where the out gone tenant had covenanted with his land lord to leave the manure on the farm and sell it to tenant at a valuation, to be made by certain persons; the effect of such covenant is to give the out-gone te nant a right of on-stand for his manure and the posses I BEATY against GIBBONS. N trespass for taking a quantity of manure and dung, the goods of the plaintiff, to which the defendant pleaded not guilty, the plaintiff, at the trial bemade by him fore Wood B., in Cumberland, shewed that he had recently before the cause of action quitted a farm, which he had the in-coming occupied under the lease after-mentioned, and which was now tenanted by the defendant, who had succeeded him. That the plaintiff had left five dunghills on the farm, of which had been taken away and used by the depart fendant, without any satisfaction previously made to the plaintiff. The defence set up was that the dung had been left upon the farm when the plaintiff quitted it, upon the farm; pursuant to a covenant in his lease; and the fact of its having been left on the farm when the plaintiff quitted it was proved. The covenant referred to was contained in an indenture of the 3d of July 1795, whereby Sir therefore if the James Graham demised the farm to the plaintiff from in-coming teCandlemas 1795, so far as respected the land, &c., and fore such valua- from Lady-day in the said year, so far as respected the swerable to the houses and buildings, for 15 years then next ensuing the respective terms, at the yearly rent of 1101. payable halfyearly at Whitsuntide and Lammas. And the plaintiff (inter alia) covenanted with his landlord to consume and expend upon the demised premises all the hay and straw which should grow thereon, and the dung and compost therefrom arising should lay upon and bestow in manuring and improving the demised premises, and at the end or expiration of the said term should sell and dispose of all such dung and compost as should then be upon the premises sion of and pro- nant remove and use it be out-gone tenant in trespass. to to the said Sir James Graham, or to the succeeding tenant, the value thereof to be paid and determined by the foreman and any two of the jury of the said manor for the time being; one of the jurymen to be named by the landlord, and the other by the tenant; and failing thereof, both jurymen shall be named by the foreman of the jury for the time being; or by any other general rule to be established by any by-law that shall be made in the court of the said manor during the said demised term; such bylaw being approved by a majority of the jury. The learned Judge being of opinion that the legal possession of the manure being in the defendant, the present tenant, the plaintiff, could not maintain trespass for taking it, but must sue for the price of it either upon the covenant, or as for goods sold; and therefore nonsuited the plaintiff. A rule nisi having been obtained by Holroyd in last Michaelmas term for setting aside the nonsuit; Scarlett, (who was with Park,) now shewed cause against it, and contended that the plaintiff had no such legal possession of the manure, which by his covenant he was obliged to leave on the farm for the use of the incoming tenant, as would enable him to maintain trespass for it against such in-coming tenant, who had possessed himself of it. The plaintiff had no right to take it away, but only to the value of it, to be ascertained in a certain way. The covenant is with the landlord, and if the landlord have not complied with it, the plaintiff's remedy lies against him. Topping and Holroyd, contrà, were stopped by the Court. 1812. BEATY against GIBBONS. Lord 1812. BEATY against GIBBONS. Lord ELLENBOROUGH, C. J. The out-going tenant being bound by his covenant not to carry away the dung, which was his property, from off the premises, but to sell it to the in-coming tenant for a price to be ascertained in a certain manner, the effect of the covenant is that he must in the mean time have a right of on-stand on the farm for it till he can sell it to the in-coming tenant; and the property must remain in him, to enable him to sell it. Therefore he had such a continuing possession of and property in it, as enabled him to maintain the action of trespass for the taking of it by the in-coming tenant before it was sold. The covenant in question must be construed cum sociis. The other Judges concurred; and Bayley, J. added that the in-coming tenant had no right to use the dung, without the plaintiff's consent, till it was paid for. Rule absolute. Wednesday, The settlement of a son, com. ing into a parish with his father under a certificate, as part of the The KING against The Inhabitants of LEEK T TWO justices removed Joseph Bromwich, his wife, and three children by name, from Leek Wootton to Milverton, both in the county of Warwick. The order was in the usual form, that the paupers had come to inhabit family, in Wootton, and were chargeable to that parish, not having fore gained any gained a legal settlement there. The sessions on appeal not having be settlement of his own, shifts quashed the order, and stated the following case for the with the settle- opinion of the Court. ment of the father in the certificated Some time before and at the time of making the order parish, though of removal, Joseph Bromwich and his family resided in the such son were named in the city certificate. 1812. The KING against The Inhabitants of TON. city of Coventry, within which the removing magistrates had no jurisdiction; but he had applied to the overseers of the parish of Leek Wootton for relief before the order was made. In April 1790 Michael Bromwich, the father of the pauper Joseph, being resident in Leek Wootton, went LEEK WOOTfrom thence with his family, of which the pauper was one, to reside with his (Michael's) father Joseph Bromwich at Milverton, who rented a tenement there at a rent of 61. a-year; but the same was of the yearly value of 107. He had no lease thereof, but was tenant from year to year. He made a will, and dying in May following, devised his interest in this tenement to his son Michael, and appointed him his executor. Michael continued in possession and remained in this tenement many years, and paid the last rent due from his father as his executor. In 1791, and while he was in possession of the tenement, Michael applied to Leek Wootton for, and the parish officers there granted a certificate, by which they acknowledged him, his wife, Joseph (the pauper) and several other children by name, to be their inhabitants and legally settled in their parish of Wootton. Joseph was then about 12 years of age, and continued to reside at Milverton with his father on this tenement five years after the death of Joseph Bromwich the elder, but never gained any settlement in his own right. Reader and Morice, in support of the order of sessions, argued, first, upon the merits, that though Michael, the father of the pauper Joseph, gained a settlement in Milverton subsequent to the certificate granted to him and his family from Leek Wootton parish, by reason of his occupying the tenement in Milverton of 10l. a-year in value, (which is one of the modes by which a certificated person 1812. The KING against The Inhabitants of ΤΟΝ. person may gain a settlement in the certificated parish); yet that the pauper Joseph his son could not gain a derivative settlement from his father in the same parish, inasmuch as he (the son) was expressly named in the LEEK WOOT- certificate, and therefore resided under it suo jure, and not merely as part of his father's family, under that general description; which distinguished this from most of the cases upon the subject, such as Rex v. Hampton (a), Rex v. Heath (b), and Rex v. Mortlake (c), in neither of which the derivative settlement was held to be gained, because the pauper was not named in the certificate except under the general description of the father's family. And they particularly relied on Rex v. Testerton (d), and Rex v. Bath Easton (e), as in point; the former of which was distinguished from The King v. Darlington (ƒ), because the children were named in the certificate. [Le Blanc, J. Is it meant to be contended that the child of a certificated man could be removed from his father's family, because he was named in the certificate?] It is a necessary consequence of the cases decided; and this very point was pressed upon Lord Kenyon in Rexv. Darlington. They argued further from the terms of the stat. 9 & 10 W. 3. c. 11. that no person who shall come into any parish by virtue of a certificate shall gain a settlement there by any act whatever, unless he or they shall take a lease of a tenement of 107. a-year, or execute an annual office in the parish. This excludes any other method of obtaining a settlement, and consequently excludes a derivative settlement. [Lord Ellenborough, C. J. That statute recites the former act of the 8 & 9 W. 3. c. 30. (c) 6 East, 397. |