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Claim by exe
An executor, claiming a leasehold as such, should procutor to leasehold, quære, if
duce the probate of the will. But as a term for years proof of the
vests in him without probate, quære, whether proof of will sufficient.
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.
Proof of title by administration.
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)
The strictness But the same strictness of proof is not required to of proof required in eject- ascertain a title to an estate in cases of settlement, as would ments unne- be necessary in an action of ejectment (5), of which the cessary in cases of settlement.
(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. (5). 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).
(4) Elden v. Keddel, 8. East, 187.
(5) See the opinion of Lord Kenyon C.J. Rex v. Butterton, 4 Term Rep. 554. ante, 84.(1), and of Wilmot C. J. Rex v. Cold Ashton, ante, 72. (4).
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.
Of Settlement by Payment of Public Taxes of the
Division of subject.
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 sufftcient inhabitancy.
1. Kind of taxes.
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.
(4) Oakhampton v. Kenton, Burr. S.C. 5. Rex v. Chidingfold, Ib. 415.
(5) Anon. Comb. 282.
bitant of the county, and not of the parish or town where be 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 except
ed 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 5l. 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. JII. passing of this act, no person or persons whatsoever, who 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 101.”
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.
(3) Rex o. Chidingfold, Burr. S. C. 415.; and see Rex v. Axmouth, 8 East, 383.
(4) Rex v. Oakhampton, Burr. S. C. 5.
(5) St. Mary Le Moor v. Heavytree, 2 Salk. 478. although a purchase for less than 501. Rex v. Worth, Burr. S. C. 90.
passed, the words seeming to relate only to those who, after the passing of the act," shall come into any parish, &c. But the court were clearly of opinion, that the legislature meant that its operation should be general ; and that no person, after the passing of the act, should gain a settlement by being rated and paying, &c. whether he became an inhabitant after the act passed, or resided there at the time. (1)
The 35 Geo. III. c. 101. s. 4. having expressly referred to tenements not being of the yearly value of 101., seemed thereby to limit its application to holdings of that description. But learned judges, referring to the probable object of the legislature, were inclined to think that this enactment was general in its operation, and meant to abrogate this kind of settlement altogether. (2)
Occupier un der 101. rated for 181.
Upon this principle, where a person occupied at the rent of 4l. part of a dwelling house of the annual value of 181., and was rated and paid to the church and poor rates for the whole house, he was held not to gain a settlement thereby; although it was argued, that being charged with and paying his share towards the public taxes of the parish, for a tenement above the yearly value of 10l., his case was not within the meaning of the act. (3)
But in a subsequent case the court came to a different pier of tene
determination. Subsequent to 59 Geo. III. c. 50. the pauper ment above yearly value ented a house at the yearly rent and value of 50l.; he ocof 10l. gains a cupied it for a period not exceeding nine months; and during
that time was rated and paid poor rates as the occupier. He gained no settlement by renting the tenement, because he had not been in the occupation for one whole year, as
(1) The words, “who shall come into any parish,” mean, who shall inhabit there. Per Lord Kenyon C. J., Rex v. Islington, 1 East, 483. Rex v. Alverthorpe, ib. n. b.
(2) See the opinion of Lord Kenyon C. J., Rex v. Islington, 1 East,
(3) Rex v. Penrhyn, 5 M. & S. 443. and the remarks upon the case Rex v. St. Pancras, 2 B. & C. 122. post, 125. (3).