Payment under 301.

mortgage for

given the mortgagee a personal security for the mortgage money, then he would, in fact, have bought an estate for 30%., though part of the purchase-money would have been borrowed on mortgage; then the words of the statute would have been satisfied, and the pauper would have gained a settlement. (1)

Upon the authority of this case, the following has been since decided.

M. agreed with H. to purchase his messuage at 521., if H. would allow 40%. of it to remain on mortgage. remainder of cordingly conveyed the fee to M. by feoffment, and a price. receipt for 521. was indorsed on the deed; but in fact only 121. was paid; and M. mortgaged the premises to H. for 1000 years, to secure the 40l., with interest, with a proviso for redemption, on payment of the principal with interest. H. retained the title-deeds; but M, remained on the premises, and resided there for twelve years, paying the interest. He then sold the premises to B. for 60l., and paying the 40l. to H., who thereupon assigned the term to him, and he conveyed immediately to B. in fee. M. acquired no settlement by his residence under the foregoing circumstances. The consideration must be bona fide paid at the time of the purchase, in order to satisfy the statute, but here only 121. was paid; the rest was left on mortgage to the vendor; the purchase-money, therefore, was not bona fide paid, so as to satisfy 9 Geo. I. The distinction is, where the consideration, though borrowed aliunde, is paid to the seller, in which case the buyer may gain a settlement; and where paying under 30l. he leaves the remainder on mortgage, in which case he cannot. Rex v. Mattingley is an authority directly in point. (2)

(1) Per Ashhurst J. Rex v. Mattingley, Grose J. assent. 2 Term Rep. 12.

(2) Rex v. Olney, 1. M. & S. 387.

SECT. III.

Of the Residence.

No one can be removed from the place in which their Criterion of freehold is situated within the first forty days of residence. settlement. But if he quits it voluntarily, and becomes indigent, he cannot be removed thither unless he has resided forty days. The mere circumstance of being irremovable from a place is not a conclusive criterion of a settlement there. In many situations, beside that already stated, persons cannot be removed, although they have not acquired settlements. The true criterion of settlement in any district maintaining its own poor is, whether the party be removable thither on the ground of requiring parochial

relief.

This depends, in all cases of acquired settlements, that is, where residence is necessary, "upon the statute of "13 & 14 Car. II. c. 12., which directs the sending a pau"per to the place where he was last legally settled for "the space of forty days." (1)

In order therefore to acquire a settlement by estate, Forty days rethe party must reside forty days in the parish in which his sidence in the parish. estate lies, and while his interest continues.

Residence for twenty-eight days has been held insuf- Residence ficient. (2)

(1) Per Lee C. J., Rex v. St. Nyott's, Burr. S. C. 132. The statute 13 & 14 Car. II. c. 12. does not expressly mention residence as owner of an estate. This species of settlement must therefore either depend upon being an exception to the modes of acquiring settlement specified in the act, or upon applying the term " Sojourner" to persons lawfully inhabiting a parish, and who cannot be removed from it.

(2) Rex v. West Shefford, Burr. S. C. 307. See also Wookey v. Hinton Blewet. An order removing a person to an estate which had descended to him, but where he had not resided, was quashed. 1 Str. 476. See ante, 60. et seq.

twenty-eight days insufficient.

Need not be forty succes sive days,

Residence on

the estate unnecessary.

But the days need not be continued; it is enough if he reside forty in the whole. A pauper who was seised of an estate of freehold and inheritance, in common with his mother and sisters, and lodged sometimes on his own estate, and sometimes in other places in the parish, off and on for three years, but never for the space of forty days in the parish at any one time, thereby gained a settlement. (1)

And it makes no difference whether he reside on his own estate, or at another person's, or in an ale-house. (2)

But the residence must be while the estate continues vested in the person claiming a settlement. A pauper being entitled to administration of an intestate's effects, as one of his next of kin, resided for three years in a leasehold house which belonged to the intestate, but took out administration only eighteen days before her removal. Lord Ellenborough C. J., in delivering the court's opinion, observed, that the pauper could not gain a settlement by taking out administration at that time. The grant of letters of administration may have the effect of vesting the leasehold property in the administratrix, by relation from the intestate's death, so as to enable her to bring actions for all matters affecting the intestate's property, and to make her liable to account for the rents and profits from that time; yet such relation cannot operate to the impossible extent of rendering her not removable at a time past, when, as far as the letters of administration were concerned, she was removable for the want of them. (3)

(1) Rex v. St. Nyott's, Burr. S. C. 132. Rex v. Sowton, Burr.

S. C. 125.

(2) Supra, (1), and also Rex v. Dorstone, ante, 104. (2). Rex v. Horsley, infra, (3).

(3) Rex v. Horsley, 8 East, 410. In this case the pauper was entitled as sole next of kin, and gained a settlement. See ante, 97.(1) But the judgment as to this point went on the supposition that administration was necessary to entitle a sole next of kin to a settlement.

It appears from the foregoing decisions, that the inhabitancy required depends upon the same principles which govern it in other kinds of settlement, and may perhaps be safely considered as regulated by such determinations as have taken place respecting them.

SECT. IV.

Of the Proofs necessary to establish a Settlement by Estate.

It is necessary to prove, 1st, That the party had either Proofs. a legal or equitable interest in possession in lands or tenements, situate within the parish or town where it is sought to settle him; 2d, A residence of forty days.

1st, Proof of the party's title to an estate is one of the 1. Proof of most important and extensive subjects of the law. The title. general rules for the admission of written and parol evidence have been already examined. But to set forth and arrange the various cases of title to which they are applicable, would be a task of much labour, and comparatively of small use to an essay like the present.

It will be sufficient to remark, therefore, that the most usual method of deriving titles in cases likely to occur in questions of settlement are, 1st, By descent, as heir to the person last seised of a freehold estate; 2d, By copy of court roll, when it is a copyhold; 3d, By marriage (1); 4th, By will; 5th, As executor; 6th, As administrator; 7th, By direct conveyance to the party for whom the settlement is claimed (2); 8th, By long peaceable possession.

Usual methods of deriving

title in cases of settlement.

1st, To establish a title by descent where the estate is Proof of title a fee simple, it is necessary to prove, that the ancestor by descent. died seised of the premises, and that the claimant is the

(1) See tit. Marriage, Vol. I. chap. xvi.

(2) Ante, 72.

Proof of death

in blood.

next heir according to the rules of succession as by law established. What any of the family who are dead have been heard to say, or general reputation in the family, entries in family books, monumental inscriptions, recitals in deeds, bills filed in chancery by an ancestor, &c. are allowed to prove a descent. (1)

And as the party must not only prove himself related, of those nearer but also the next in succession to the ancestor, if there has been some other person of nearer blood he must be shewn to be dead without issue. In such case, if the fact cannot be directly proved, it will be sufficient to show that he has not been heard of for seven years, in order to put the opposite party on proof that he still exists or has issue. (2)

Proof in estate tail.

Title to copy

court roll.

Where the estate is in tail, whether general or special, the claimant must be proved next heir according to the limitation described in the conveyance.

2d, A title to a copyhold estate is generally proved by hold, copy of producing the court-rolls. But, an examined copy, if sworn to be a true one, is equally admissible. (3) If the party has not been admitted tenant, his relationship to the person who last died tenant of the premises must be proved. Here it will be necessary, not only to show the

(1) Bull. L. N. P. 233. Ib. 294. Taylor v. Cole, 7 Term Rep. 2. See 1 Phill. on Evidence, 226., upon this and the subsequent points. (2) Rowe v. Hasland, 1 Black. Rep. 404. See also Rex v. Martley, 5 East, 40. A person absent thirty years, and not since heard of by her relations, may be presumed dead. A minor, apprenticed to the sea service, went to sea, and had not afterwards been heard of. The court was of opinion, that according to 19 Car. II. which respects leases on lives, and also 1 Jac. I. c. 11. respecting bigamy, the presumption of the duration of life with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living; and there is fair ground to presume their death at the expiration of that period, whenever the precise term of their death becomes material. Doe v. Jesson, 6 East, 80. See also Rex v. St. Faith, Newton, 3 D.&R. 348.

(3) Bull. L. N. P. 247.