Eighthly, Of settlement by estate.

1. The thing.

2. Tenure and duration.

treasurer, or to the several respective burgesses or burgesses' widows, who
should from time to time, during the term, have shares in the farmhold,
in equal portions: the rent of each farm is divided into equal portions,
generally eleven, but in a few instances twenty-two. At another annual
meeting, called a Stent Guild, a portion is allotted, as a specific farm, to
each resident burgess or burgess's widow, or to as many as there are vacant
portions: these are called stents, and vary in value from 21. to 91. per
annum: the senior burgess is entitled to preference, as the more valuable
become vacant. The portion of the rents called stents, are paid annually,
by the treasurer, to the burgesses entitled to them: but until the last four-
teen or sixteen years, the burgesses, in many instances, received their stent
money immediately from the farmer or lessee of the specific farms upon
which their several stents were assigned. The burgesses in guild have, by
their charter, a power of making bye-laws for the better preserving, disposing,
and letting their lands, and they have made bye-laws to regulate the enjoy
ment of the meadows and stents, and prescribed the condition of husbandry
under which these lands may be tilled, and the terms for which the meadows
may be let, by the individual burgesses. They decide on the title of those
who claim to enjoy meadows and stents according to such bye-laws, and
instances of forfeitures are recorded. Unless there is such a forfeiture, or the
party becomes non-resident, or relinquish his stent or meadow by choosing
one of more value, he may enjoy the first allotted to him for life. Some
enjoy one stent, others two, and others one and a meadow. Those who
enjoy two stents hold one in lieu of a meadow. McQueen, for three years
previous to his removal, has been, and now is, in the enjoyment of one stent,
assigned upon a farm within the parish, and annually receives from the
treasurer, for his portion of the rent, 31. 5s. 9d. He also enjoys another por-
tion assigned on the outfields, under the description of stent, for a meadow,
his share of which is 3l. 1s. 9d. The rents of these two farms, during the
entire period of the pauper's share, is reserved to the mayor, &c., or
treasurer, and paid to the treasurer, and by him to the
The
pauper. pauper
is not at present entitled to a meadow, but he may claim one when there is
a vacancy. The pauper, as burgess, is a member of the guilds, and entitled
to vote in the meadow and stent guilds as well as others. The question is,
Whether the pauper was irremovable, so as to acquire a settlement?-Lord
Tenterden, C. J. I am of opinion that McQueen was not seized of any equi-
table estate, that being in the corporation. He was only entitled to such a
portion of the rents as the body corporate might think fit to allow him.
Whether they allowed him a portion of those rents, first throwing the whole
together, and then dividing them among the freemen; or whether they
assigned to each freeman the rent of a particular portion of land, seems to
me immaterial. The freemen had no right to enter on the land: and in
Rex v. Warkworth, his lordship observed, In that case, the pauper, simply
as a freeman, had a right to exercise a right of common. Here, the burgesses
have no right to occupy the land, the corporation let it.—Bayley, J. Rex v.
Warkworth shews that a burgess, entitled to a right of common, is not settled,
by residing in the borough. Being a freeman, and as such entitled to cer-
tain local privileges, did not give McQueen any estate, legal or equitable;
and if he had no estate in the land, he had no right to occupy. The estate
was in the corporation.-Parke, J. The pauper had nothing but a privilege
of taking a portion of the profits of the land, at the will of the corporation.
Order confirmed.

Secondly-The Tenure and Duration of Interest.

The nature of the tenure is not material, as far as respects the law of parochial settlement. It may be acquired by an estate in lands held in frank tenure, or freehold, (a) or by copyhold. (b) The duration of the estate is also

(a) Rex v. Charlton, 2 Bott, 493; Cald. 416; Rex v. Farringdon, 6 T. R. 520.

(b) Harrow v. Edgeware, 2 Bott, 465; Rex v. Burclear, 1 Stra. 163.

Eighthly, Of settlement by

estate.

2. Tenure and

immaterial, if it were sufficient to ensure a residence of forty days. (a) It
may be either a freehold or copyhold estate, in fee or for life, (b) or a lease-
hold interest, determinate on lives (c) or years (d). Even a tenancy from
year to year, (e) when acquired by proper means (ƒ), as also the right of a
widow to continue forty days upon her husband's lands, until she is assigned duration.
her dower (g) have been held to be interests sufficiently permanent to confer
a settlement. But since the 59 Geo. III. c. 50, and 6 Geo. IV. c. 57, we
have seen that a tenant cannot acquire a settlement, even by a yearly hiring,
unless under certain circumstances (h).

But it is clearly laid down and settled, that the interest must be of sufficient permanency to render the party irremovable during his forty days' resi dence; and, therefore, a mere tenant at will cannot acquire a settlement as such, unless his tenement is of the annual value of 10l., when it ranks under a different species of settlement (i).

The great principle upon which this species of settlement is founded, is that a person cannot be removed from his own. The chief question, therefore, in this part of the law of settlement, respects the means by which property becomes a man's own, or, in other words, his title to the estate. The methods of acquiring real property, are usually divided into two kinds, one by descent, and the other by purchase.

Thirdly-Of the Annual Value of the Estate.

Harrow v. Edgeware, Fol.257, 2 Bott. 608. C. having gained a legal settlement in the parish of H., afterwards purchased a copyhold estate for his own life, worth 11. 5s. a-year, in the parish of E., to which estate he was regularly admitted. He removed from H. to E., and lived on this copyhold estate near five years. His wife was afterwards admitted to the estate, and lived thereon till she died, leaving three children, who became chargeable to the parish, from whence they were removed to the parish of H., and the sessions confirmed the order.-Parker, C. J. A parochial settlement is nothing more than the privilege of living irremovable in the parish. A man who has an estate for life, or an estate of inheritance, of his own, cannot be removed from it, although in value, it is under 10l. a-year. It therefore follows, that where a man does so live, he gains a settlement for himself, and for the children in his family.-Powell, J. If this had been the grant of a copyhold for years, it might, as it is under the value of 10. a-year, have been within the reason of the statute, but as it is an estate for life, it certainly is not. The father clearly gained a settlement in E. by residing forty days on this copyhold, and the children must of necessity be settled in the parish in which their parents are settled, until they have acquired settlements for themselves, which, in the present case, they were not of an age to do. The argument respecting the possible inconveniences parishes may suffer from such estates being held to confer settlements, loses its weight, when it is recollected that lords of manors cannot create new copyholds, nor, by 31 Eliz. c. 7, erect new cottages, without laying four acres of land to each, and it is not much to be feared that lords will give away, merely from spleen, such quantities of land, especially as the land itself would defeat the intended effect of such grants, by preventing the possessors from requiring parochial relief.-Eyre, J. The distinction attempted to be made by Mr. Raymond, between being settled and not being removable, is imaginary, for a settlement is nothing but the privilege of living irremovable; and accordingly both orders were quashed.

(a) 2 Nolan, 71. (b) Id. ibid.

(c) Rex v. Tharwood, Burr. S. C. 386; Rex v. Ashland, 444, pauper certificated. (d) Murfley v. Grandborough, 1 Stra. 97; Kex v. Uttoxeter, Burr. S. C. 444. (e) Rex v. Stone, 6 T. R. 295.

(f) Rex v. Hagworthingham, 1 B. &
C. 634.

(g) Rex v. Painswick, Burr. S. C.
783; Rex v. Long Wikenham, Cald. 474,
where the widow was certificated.
(h) Ante, 523.
(i) 2 Nol. P. I. 72.

3. Annual value. The estate need pounds per annum, if it be for life, or of in

not be of ten

heritance, &c.

Eighthly, Of settlement by estate.

4. The interest.

An infant eight years of age, residing in the

has an estate of

its own, of only

the annual value

and gains a settlement by such residence.

An executor gains a settlement by residence as such upon leasehold.

Fourthly-The Interest in the Estate, and Who may acquire this settlement.

It seems that any person may acquire this description of settlement, and even an alien, though he cannot acquire a descendable interest, may yet hold till inquest found. (a) So an infant, and other persons under legal incapacity, may acquire the same.

Rex v. Hasfield, 2 Stra. 1131. Case stated, that the mother of the children removed had an estate of 41. a-year in Tirley, where she and her parish in which it husband lived, and had these children. She dying, the husband became tenant by the courtesy; and whilst such, took 30l. a-year, at Hasfield, and lived one year there with his two children, and then died. The Court conof four pounds, is firmed the orders, as to the girl, but quashed them as to the boy. For as to irremovable, the boy, who was eight years old, he was tenant in fee, of the 4l. a-year. And though it was not stated, that he was actually upon that spot, yet it was enough that he had such an estate in the parish, from which he could not be removed. But as to the daughter, it was otherwise; she could demand no maintenance out of her brother's estate; as it was never yet determined that children should go to a grandmother for nurture. She may, indeed, be charged to contribute to their relief, in the parish where they are settled. Rex v. Sundrish, 1 Sess. Ca. 200; 2 Stra. 983. Thomas Perch, by indenture, demised to Thomas Gates, the father, a cottage at 5s. a-year, which was the full value, for ninety-nine years. The lessee held it till his death, and devised it to Thomas Gates, his son. And the question was, Whether the son, as executor, being entitled to the term, shall gain a settlement by in habiting in such cottage? The Court were unanimously of opinion, that this estate, though a leasehold, was his own estate; that he had come into it under his father's will; that it is, together with other things, charged with 201., payable to his mother for her maintenance, and that in Mursley v. Grandborough, a leasehold estate, although it was not a beneficial lease of the whole, had been held sufficient to confer a settlement. Rex v. Uttoxeter, Burr. S. C. 538; 2 Bott, 620. The pauper, William Gilbert, was settled at Uttoxeter. His mother rented and resided upon farm of 221. a-year, at Marchington Woodlands; which she devised to her five children, and made the pauper and her three other sons executors, and died. The pauper alone proved the will and entered as her executor, and resided upon the farm twelve or thirteen weeks. He afterwards returned to Uttoxeter, but continued to go over to Marchington Woodlands, to give directions from time to time, and had a servant upon the farm till the Lady-day following. The question was, Whether he thereby gained a settlement at Marchington Woodlands ?-By the Court. It is very true, that a share not amounting to 107. a-year, of a tenement of above 10l. a-year in value, will not do. But here he has a right as executor. The value thereof is totally immaterial; because, by common law, no person can be removed from his And one who has a right to reside irremoveably, doth thereby gain a settlement if he reside forty days.

Coming to a tenement by executorship, although under ten pounds

a-year, gains a settlement.

Valueimmaterial.
The executor to

a tenant of an

pounds a-year,

gains a settlement by forty days' residence, although he do not prove the will.

own.

a

Rex v. Stone, 6 T. R. 295. E. Syms removed from Salt and Enson to Stone. Order confirmed. Case: The pauper went to live with his fatherestate under ten in-law, E. Bentley, in Salt and Enson, who rented from year to year a cottage and about six acres of land, under the yearly value of 101. Bentley died, and by his will gave all his personal estate to the pauper in trust, that he would allow the testator's wife a sufficient maintenance thereout during her life; and, at her decease, his personal estate should be divided amongst his five children, the pauper's wife being one: and he appointed the pauper sole executor of his will. Upon the testator's decease, the pauper possessed himself of all his personal estate, and continued in possession of the cottage and lands, without coming to any agreement with the landlord, buying and selling every thing, paying the rent, and maintaining the widow until his removal, which was upwards of three years; but he did not prove the will till three days previous to his removal.-Lord Kenyon, C. J. I cannot distinguish this case from Mursley v. Grandborough, and the other cases in which it has been held that an executor or devisee of a leasehold estate, of less value

(a) Ante, 583; 1 Saund. 6 & 7.

Eighthly, Of settlement by

estate.

than 107. a-year, gains a settlement by residing upon it for forty days. It is said, however, that this pauper was a mere trustee but no one had a right to take the estate from him; he took it liable to all the testator's debts, and the creditors would have had a right to call on him for payment of their 4. The interest. debts, before he made any distribution of the testator's property under the will. In fact, the pauper resided on this estate for more than forty days; and the established rule, which we ought to preserve with anxiety, is, that though a person cannot acquire a settlement, by a purchase, for less than 301. paid, yet if he take such estate by devise, he may: so, though he cannot gain a settlement by renting a tenement of less value than 10l. a-year, yet, if such an estate devolve on him by operation of law, he may gain a settlement by forty days' residence on it. The distinction taken between a tenant from year to year, and a tenant for a term of years, is rather a distinction in words than in substance. A tenant from year to year is entitled to estovers, and the same advantages as a tenant for a term of years. In truth, he is a tenant from year to year as long as both parties please. And, considering how many large estates are held by this tenure, it would be dangerous to say that the term ceased at the end of the year, because then the landlord might lose his right of distress. Although, on my first reading this case, it struck me as a very minute interest to confer a settlement; on consideration I am satisfied that we cannot, without overturning a variety of cases, determine that the pauper did not gain a settlement by residing on it for forty days. -Ashhurst, J. It is perfectly immaterial whether the pauper had a beneficial interest in the estate, it being sufficient that he resided there forty days for a necessary purpose, and could not have been removed from it.-Grose, J. It certainly seems strange, at first, that an executor should gain a settlement by a residence on the testator's estate, when such a residence by the testator would not have conferred a settlement upon him. But we must consider the difference of the situation of the two persons; the one comes in by his own contract, the other by act of law. This distinction was taken in Rex v. Uttoxeter.-Lawrence, J. It was settled in Doe d. Shore v. Porter, (3 T. R. 13,) that if a tenant from year to year died intestate, his administrator has the same interest in the land that the intestate had; then what was the interest of the pauper's testator? He had a right to continue on the estate another year, unless six months' notice to quit were given, and, of course, the pauper, (his executor) had the same right. With regard to the want of probate, there is a case in 3 Dyer, 367 a, that gives a decisive answer to this: a termor devised his term to another whom he made his executor, and died; the devisee entered and died without any probate, and it was held that the term was legally in the executor by his entry, and an execution of the devise without any probate. So that if there had been no probate of the will in this case, still the term was vested in the pauper, the executor.

Rex v. Widworthy, Andr. 4; Burr. S. C. 109; 2 Bott, 612. The pauper removed to Widworthy, and lived there with his father in a cottagehouse of 30s. a year, working as day-labourer. The father died intestate, possessed of the cottage for the residue of a term, determinable on lives, leaving the pauper and another son. The pauper's brother took his distributive share of his father's estate in goods, and the pauper, after the father's death, continued in the cottage for five or six years, until the lease was determined; after which, and since the making out the order for his removal, he took out administration to his father.-Page, J. At the time of making the order he had gained no settlement in W.; because nothing vested in him before administration was granted to him. If so, then the order for romoving him to F. was a good order when made, and the sessions ought not to have quashed it; though administration had been afterwards taken out; for they could not quash a good order, upon a matter which happened ex post facto; and if this administration really gained him a settlement, there ought to have been a new order of two justices to remove him back to W. When he was first removed from thence he had nothing to do with the cottage; for nothing vested in him till he took out letters of administration; consequently, if he gained a settlement at W. at all, it was gained subsequent to the making of the original order. But secondly, he had it

in equal degree,

Where there are two next of kin and the father being possessed of the residue of testate, and after order of removal made for one, he takes out letters of administration, he cannot have a virtue thereof.

a term, dies in

settlement by

Eighthly, Of settlement by

estate.

4. The interest.

cast.

not at all in his own right, even after administration; nor does it seem to be such a sort of estate as would gain him a settlement. This is a cot-house of so small a value as 17. 10s. a year only, holden upon the residue of a term of years determinable upon lives. In the case of Ashbrittle v. Weyley, there was a continuance of the quiet possession for thirty years and a descent The pauper had a title against all the world except the lord of the waste; and it would be a good bar, even against the lord, in an ejectment. There, the pauper clearly had such a possession as to be irremovable from it. But I apprehend that the pauper, in the present case, was removable even during the term; but afterwards he certainly was.-Probyn, J. The whole depends upon this single question, Whether the pauper was removable during the five or six years that he lived in this cottage? for I take the rule now settled and established to be," that if the pauper come to an estate by inheritance, or as executor or administrator, be it of ever so small value, he is irremovable; and if he remain forty days in possession and inhabitancy, he gains a settlement." Now I take it, that the pauper in the present case was removable. His possession rested only upon a private agreement between him and his brother. If he had taken out administration during the interest, he had had a vested right; but taking out administration after the term expired could never give him an interest in the expired term, in which he had none during its subsistence. He was in possession merely as a tenant at will; he was removable by the parish, and his right would have been without foundation, if administration had been granted to any one else. Therefore he had no right at all till administration was granted. The case of Wyley was a strong case. That was a descent to the pauper after a possession of thirty years; which is a good title in an ejectment, and a presumption of an inheritance. It was primâ facie a good title as heir at law: none but the lord could contest the right. And if a pauper live forty days under a right which makes him irremovable, it gains him a settlement.Chapple, J., was of the same opinion. For there was no time, during the continuance of this lease, when the pauper was irremovable, and without remaining forty days irremovable, a settlement could not be gained by him. Tenant at will of And he observed, that there was no agreement at all between the brothers, that the pauper should take this lease as his distributive share; or, at least, no such agreement appeared. It is only stated, that the other brother did take his share in goods; and John did live in the cottage; but it does not appear that this happened in pursuance of any preceding agreement that it should be so.

an estate less

than ten pounds,

can gain no settlement as such.

Where a wife and two children sur

vive the intestate,

the wife cannot

gain a settlement

by letters of ad-
ministration
taken out after
assignment by
her of the in-
testate's term.
Lease for years
determinable
on lives.

Rex v. North Curry, Cald. 137; 2 Bott, 631. Betty Winter, and children, removed from North Curry to Ruishton. Order quashed. Case: John Winter, late husband of the pauper, purchased a cottage and garden in North Curry, of the yearly value of 20s. for fourteen guineas, which was demised to him, his executors, administrators, and assigns, for ninety-nine years, or three lives, at the yearly rent of 2s. He and his wife resided in the cottage for several years until his death: his widow, and their children, soon after, became chargeable to North Curry, but were refused relief unless they would go into the workhouse, which they did, and quitted possession of the cottage and garden, where they were relieved until they were removed to Ruishton in February, 1781. Ruishton appealed at the Easter sessions, 24th April, 1781, which sessions was adjourned, and Betty soon after returned to the cottage, and resided there till 28th April, 1781, when she sold the cottage and garden for six guineas for the residue of the term, and by indenture dated 28th April, 1781, assigned the term. On 11th July, 1781, being the day after the first day of the present sessions, Betty sued out letters of administration of her late husband's effects. It was argued, that there was a difference between the sole next of kin, and where several persons in equal degree have an equal right; here, the widow having before administration a specific right in the thing, could not be removable; that there was only a ceremony necessary to make the assignment by her indefeasible; that in Rex v. Widworthy, the pauper was not solely entitled to administration, but jointly with his brother.-Lord Mansfield, C. J., said, that this case did not materially differ from Rex v. Widworthy; as the children were