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 daugh ter (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 itself must be produced and proved. (7) freeholds. 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. v. 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). Claim by executor to leasehold, quære, if proof of the will sufficient. Proof of title by administration. The strictness of proof re quired in eject ments unnecessary in cases of settlement. An executor, claiming a leasehold as such, should produce the probate of the will. But as a term for years vests in him without probate, quære, whether proof of the will, and entry upon the premises by the executor, would not be sufficient, as in cases of real property, especially supposing the party to have died without taking out probate. (1) 4th, As Administrator. The ecclesiastical court never grants an exemplification of letters of administration, but only a certificate that administration was granted, which is of course good evidence of that fact. (2) So would the book of the ecclesiastical court, wherein was entered the order for granting administration (3), notwithstanding a subsequent grant of administration to another person, the first not being recalled. For the letters of administration are only a copy of the court's original minutes, drawn up in a more formal manner. (4) But the same strictness of proof is not required to ascertain a title to an estate in cases of settlement, as would be necessary in an action of ejectment (5), of which the (1) See Rex v. Stone, 6 Term Rep. 295. But there the pauper proved the will three days previous to the removal, as to the effect of which see Rex v. Horsley, ante, 116. (3). It is laid down in Bull. L. N. P. 246. that a copy of the probate of the will is evidence of S. being executor; but a copy of the will would not be evidence. Cites Smartle v. Williams as cited by Hardwicke C. See 1 Phill. on Evid. 376. (2) Garret v. Lister, 1 Lev. 25. Count of Manchester's case cited, ibid. and see Bull. L. N. P. 246. It is laid down in Lewis v. Brag. Bull. L. N. P. 108. that the book or copy of it cannot be given in evidence, unless it be proved that the administration under seal of the court is lost. But this determination seems overruled by the reasoning of the court in Elden v. Keddel, post, (4). (3) Ib. (4) Elden v. Keddel, 8. East, 187. (5) See the opinion of Lord Kenyon C.J. Rep. 554. ante, 84. (1), and of Wilmot C. J. 72. (4). Rex v. Butterton, 4 Term object is to change the possession and affect the right. The difficulties are lessened by the admissibility of the pauper's own evidence; and in the case of third parties, such as contending parishes, peaceable possession is strong evidence of title, as it shows an acquiescence by those who are most interested to dispute the enjoyment, if the parties right could admit of being questioned. 122 Division of subject. 1. Kind of taxes. Parochial taxes. CHAP. XXV. Of Settlement by Payment of Public Taxes of the Parish. THIS species of settlement depends upon 3 W. III. c. 11. s. 6., which enacts, that if any person who shall come to inhabit in any town or parish shall be charged, and pay his share towards the public taxes or levies of the said town or parish, then he shall be adjudged and deemed to have a legal settlement. The subject will be best explained by considering, 1. The kind of taxes or levies intended by the statute, and in respect of what they must be payable. 2. What constitutes a rating. 3. What amounts to a paying. 4. What is a sufficient inhabitancy. 1. Of the kind of taxes, and in respect of what payable. In general a settlement may be gained, not only by payment of such taxes as are strictly parochial, such as the poor's rate (1), but also of any other public tax which is charged and payable within a parochial limit. (2) Such are a church rate (3), the land tax (4), and other of the king's taxes. (5) But the party must pay in the quality of a parishioner. Payment towards a county bridge, therefore, gives no settlement, for the person pays as an inha (1) Openthaw v. Gorton, Burr. S. C. 522. and many other cases. (2) Per Holt C. J., Rex v. Blood, Comb. 410. (3) Rex v. St. Bees, 9 East, 203. (4) Oakhampton v. Kenton, Burr. S. C. 5. Ib. 415. (5) Anon. Comb. 282. Rex v. Chidingfold, bitant of the county, and not of the parish or town where he lives. (1) Also the statute does not require that the payment should be for an entire year; if one who is rated pays his share for a less time, as for a quarter of a year, it is sufficient. (2) Payment of the following taxes confers no settlement, in Taxes excepted by statute. consequence of express provisions made by statute : The scavengers' rate and assessments for the repairs of the highway, by 9 Geo. I. c. 7. s. 6.; duties on houses worth 57. yearly rent and upwards, by 18 Geo. III. c. 26. ; duties on houses and windows, by 21 Geo. II. c. 10.; or any of the assessed taxes, by 43 Geo. III. c. 161. s. 59. Prior to 35 Geo. III. c. 101. the account on which a tax became payable was of no importance in a question of settlement. A person rated to the land tax (3) for his salary (4), or a tenant assessed to the poor's rate for a tenement, however small in value, might acquire a settlement. (5) But it was thereby enacted, "that from and after the 33 G. III. passing of this act, no person or persons whatsoever, who c. 101. shall come into any parish, township, or place, shall gain a settlement in such parish, &c., by being charged with, and paying his or their share towards the public taxes or levies of the said parish, &c. for or in respect of any tenement not being of the yearly value of 10l." In construing this statute, some doubt was made whether To whom it it extended to persons dwelling in the parish at the time it (1) Cases of Sett, 1. (2) Rex v. Bramley, Burr. S. C. 75. (3) Rex v. Chidingfold, Burr. S. C. 415.; and see Rex v. Axmouth, 8 East, 385. (4) Rex v. Oakhampton, Burr. S. C. 5. (5) St. Mary Le Moor v. Heavytree, 2 Salk. 478. although a purchase for less than 50%. Rex v. Worth, Burr. S. C. 90. extends. |
