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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)

twenty-eight days insuffi

cient. (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. Str. 476. See ante, 60. et seq.

Need not be forty succes sive days.

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)

Residence on the estate unnecessary.

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


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, Burt. 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.


Of the Proofs necessary to establish a Settlement by Estate.

It is necessary to prove, Ist, 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

title. most important and extensive subjects of the law. The 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 methods usual method of deriving titles in cases likely to occur in of deriving questions of settlement are, Ist, By descent, as heir to of settlement. 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.

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.


next heir according to the rules of succession as by law Hearsay evi-. established. What any of the family who are dead have dence of pedi- 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)

Proof of death And as the party must not only prove himself related, of those nearer but also the next in succession to the ancestor, if there in blood.

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.

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.

Title to copy

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.

claimant's relationship, but the ancestor's admission. If Local customs

which regulate the lands go according to any local custom which differs descent. from the rules of descent, as established by common law, that custom must be proved. Customs that the lands shall go to the youngest nephew (1), or the eldest daughter (2), or that they shall not be partible between heirs How proved. female, are of this kind.(3) These customs may be proved, by producing an ancient customary of the manor, which has been handed down with the court-rolls (3), or some entry in the court-rolls defining the mode of descent in the manor (4), or by entries of persons claiming in that character having been admitted tenants. (5) But such Customs taken customs are to be construed strictly, and the common-law strictly. rules of descent shall prevail, where the customary mode is not fully established. Thus instances from the rolls of a manor, that the eldest daughter and eldest sister have succeeded to the copyhold, do not extend the custom to an eldest niece; but the lands shall go in preference to the male heir, according to the rules of the common law.(6)

3d, If the title is under a will, and the party claims a Proof of title freehold estate, not only the testator's death, but the will by will to

freeholds. itself must be produced and proved. (7)

If the interest is only leasehold, nothing but the pro- To leaseholds bate of the will or letters of administration, with the will by probate. annexed, are legal evidence of the will, in all questions respecting personalty. (8)

(1) Doe v. Mason, 3 Wils. 63.

(2) Denn. o. Spray, 1 Term Rep. 466. although no entry appeared on the rolls that any person took according to it.

(3) Denn v. Spray, ante, (2).
(4) Roe ex. dem. Beebee v. Parker, 5 Term Rep. 26
(5) Doe v. Mason, ante, (1).
(6) Denn ex. dem. Goodwin v. Spray, ante,(2).
(7) As to which see vol. i.

(8) Per Lord Kenyon C. J. Rex v. Netherseal, 4 Term Rep. 258. ante, 41.(1). But that a copy of the probate is evidence, at least against the executor, see Smartle v. Williams, post, 120. (1).

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