Secondly, Of evidence of settlement, &c. 6. Evidence of settlement by renting a tenement. a prima facie case of tenancy may be rebutted. Of the proof of yearly value. the landlord, or that the party occupied in the capacity of bailiff or servant to the owner of the property, or only a privilege allowed him in respect of something else, which was the principal thing. If no objection of this kind can be successfully made, it may be proved that no rent was ever in fact paid. This will call upon the first party to show a direct and positive assent of the landlord to the occupier's possession. But any circumstance may be adduced which shows that he recognized the occupation, and that he did not treat the occupier as a trespasser. The next step is to prove that the yearly value of the tenement, at the time of the occupier's coming to settle upon it, was 10l. In the case of a tenancy from year to year, this time is at the beginning of every succeeding year, and a tenancy by several, either as joint-tenants, or as tenants in common, is sufficient, if the value of each tenant's share is sufficient in amount. To prove the value of the tenement, competent persons may be called to by means of com- state what, in their opinion, the tenement was at the time worth, if let by the year. Or, the rent may be given in evidence, and if it be a yearly rent, and there be no fraud in the case, it is a very fair criterion of the value. The value may be proved, either petent persons, or, as a primâ facie case, by means of the rent. If the yearly value is to be a conclusion drawn from the aggregate of rents reserved at shorter periods of time, the opposite party may give evidence of the actual value, and thus demonstrate the conclusion to be an unsound one. That the person who rented the tenement, resided for forty days in a parish forty days in the which contains some part of the tenement, may be proved by the person himself, or by any other person who is acquainted with the fact. Of the proof of residence for parish. Of the proofs of If the settlement be claimed in respect of a renting of a tenement since the 2nd June, 1819, that is to say, a settlement under the statute 59 Geo. II. c. 50, these several points are to be established: 1. That the tenement consists of a distinct and separate dwelling-house, or building, or of land, or of both; lying in one parish. 2. That the tenement was hired by the party for a year, at the rent of 101. in all. 3. That the party had the tenement, or all the parcels composing it, for a whole year; and, if the tenement consisted of land, that he had it in his own occupation for that period of time. 4. That he paid a year's rent for the tenement, or for the parcels composing it. 5. That he resided forty days in the parish which contains the tenement. 1. The situation of the tenement may be proved by any one acquainted with the parish, and it is only where the boundaries of the parish come in dispute, that any difficulty can arise upon this part of the case. When that occurs, recourse must be had to the ordinary proofs in such cases; as the exercise of parochial rights, perambulations, reputation, &c. The situation of the tenement being proved, the nature of it must nex: be shown. And this question is generally free from all difficulty. 2. It is next to be proved, that the party hired the tenement for a year, at the rent of 10l. at least. The best evidence of the hiring is the agreement between the lessor and lessee. If this agreement is by deed or other writing, the deed or writing must, if possible, be produced. If it cannot be produced, then secondary evidence may be given of its contents. If the agreement was by word of mouth, then the usual proofs should be adduced in order to make out an oral agreement. It may happen that there are no direct means of proving an agreement between the lessor and lessee. In this case recourse must be had to such evidence as leads to the conclusion, that a bona fide hiring, though it cannot be expressly proved, did in fact take place, aud that it was such as to satisfy the conditions of the statute. 3. It is next to be proved that the tenement was, according to the nature of it, either held or occupied for a whole year by the party who hired it. This is a matter which depends for its proof upon the testimony of any one who can speak from his own personal knowledge of it. 4. The proof that the party having the tenement, paid a whole year's rent for it, may be given by the lessor or lessee, or any other person present when it was made; and if the lessor is dead, or if his agent who received the rent is dead, then by any receipt which may have been given for the rent. 5. The proof that the party having the tenement, resided forty days in the parish which contains the tenement, needs no further explanation. Secondly, Of evidence of settlement, &c. 6. Evidence of With regard to the evidence required to make out a settlement under the 6 Geo. IV. c. 57, that is to say since the 22nd of June 1825, the proofs will be for the most part like those in the former case; but the hiring of the settlement by tenement, it seems, must be under one hiring. It will be seen, by the following case, that, as under these two latter acts of parliament, the party must hire or rent the tenement, at 10l. a year at the least, and the demise must be by the year; in all cases under these statutes, if there be a written agreement, it must be produced, it being the best evidence of the terms of such renting. Rex v. Merthyr Tidvil, 1 Bar. & Adol. 29. On appeal against an order of justices for the removal of Evan Davies and his family, the quarter sessions confirmed the order, subject to the opinion of this Court upon a case, the material parts of which are as follows:-Evan Davies, his wife, and children, were removed from Cadoxton Juxta Barry to Merthyr Tidvil, in the county of Glamorgan. The order being appealed against, at the last Midsummer sessions for Glamorganshire, Evan Davies, the pauper, was called as a witness by the respondents, and deposed, that he rented and held possession of a house in Merthyr Tidvil, from May, 1827, to June, 1828. The rent was 351. per annum, payable quarterly. He paid the first three quarters as they became due, and had a receipt for the last, which was not paid in money, but for which, as he alleged, the landlord accepted an equivalent in fixtures. On cross-examination, he at first stated that the contract between him and Rock, the landlord, for the premises, was merely verbal; but Rock, who was in court, handed the agreement in writing to the advocate for the appellants, and the witness, on this paper being held up to him, admitted that the contract was a written one. It was then contended on behalf of the appellants, that parol evidence of the agreement could not be received, the written document being in existence, and not produced, or the want of it excused, by the respondents; but the sessions over-ruled this objection. The appellants then called Rock, whose evidence tended to shew that the transaction respecting fixtures was not a proper satisfaction of the last quarter's rent, and that the receipt was unfairly obtained. On the order being confirmed, two questions were reserved for the opinion of the Court of King's Bench; first, Whether the parol testimony of Davies was properly received; secondly, Whether the payment of rent was sufficient under the 6 Geo. IV. c. 57.-Bayley, J. This case is clearly distinguishable from Rex v. The Inhabitants of Holy Trinity, 7 B. § C. 611, (ante, 837,) the facts of which took place before the passing of the statutes, 59 Geo. III. c. 50, and 6 Geo. IV. c. 57,and when the proofs necessary for establishing this kind of settlement were, that a tenancy subsisted, and that the value of the tenement was 10l. a-year. At that time the terms of the agreement were immaterial, except as a test of value, and, when proved, they did not preclude the sessions from determining for or against the settlement. Rex v. The Inhabitants of Holy Trinity decided this only, that where the terms of the tenancy were not material, the fact of tenancy might be proved without the terms. But under 6 Geo. IV. c. 57, they are essential, for this act requires the tenement to be bonâ fide rented for the term of a year at 10l. a-year; and it is, therefore, necessary to know what was the rent contracted for, which cannot be proved without reference to the agreement itself. That having been in writing, the general rule of evidence prevails, and the order is, therefore, bad.—Littledale and Parke, Js., concurred. Order of sessions quashed. It will be observed that, by the words of the above acts, land must be occupied; but if the tenement be a house, it suffices if it is held only; the distinction appears in the following case. [See the rule, ante, 574, 577]. Rex v. Stow Bardolph, 1 Bar. & Adol. 219. Upon appeal against an order of two justices, whereby Martin Buck and Elizabeth his wife, and their children, were removed from the parish of Stow Bardolph to the parish of Downham Market, both in the county of Norfolk; the sessions quashed the order, subject to the opinion of this Court on the following Case:-The pauper, Martin Buck, at old Michaelmas, 1819, hired a house, in the parish VOL. IV. H H H renting a tenement. Residence for forty days in the parish. of the proofs of a settlement by renting since 22nd June, 1825. By 6 Geo. 4, c. 57, s. 2, a settle ment by renting a tenement can only be acquired where the same fide rented for a year at 10. a has been bond year: Held, that such a renting can only appear by reference to with the landlord, and could proved by parol, where the con tract was in writing, and might have been produced. the agreement not therefore be Pauper took a house for a year lived there nearly the whole term, he abandoned the weeks before the at 107. Having premises a few Secondly, Of evidence of set. tlement, &c. 6. Evidence of settlement by renting a tenement. year ended, and they were then occupied by another person. how that party came in. The pauper paid the whole year's rent. He gained a settlement under 59 Geo. 3. c. 50, by holding the house for a year. of Downham Market, of one Jonah Weston, for a year, at the rent of 101. He occupied the house from that time until a few weeks before old Michaelmas, 1820, when he removed to another house. The house was then occupied by one Mary Palmer. The pauper paid the whole year's rent, and took a receipt. The court of quarter sessions found that the pauper had, previously to the Michaelmas, entirely abandoned the possession of the house, and stated the question for the opinion of the Court of King's Bench to be, Whether the pauper, having entirely given up possession of the house, four or five weeks before Michaelmas, and being succeeded by another occupier, yet paying the whole year's rent, could be considered to have held the It did not appear house for one whole year, within the meaning of the 59 Geo. III. c. 50, so as to gain a settlement in the parish of Downham Market.—Bayley, J. This is a plain case. The distinction between land and houses, under 59 Geo. III. c. 50, was laid down in Rex v. Tonbridge (a). Land was to be occupied; a house might be held only. In the latter case, “So as the tenure subsisted, it was sufficient (b)." Can it then be presumed here, that the relation of landlord and tenant was determined? It must be taken to have continued, unless a determination of it be shewn. The case finds that the pauper hired this house for a year, and occupied it till a few weeks before Old Michaelmas, when he abandoned the possession, and removed to another residence; that the house was then occupied by another person, and that the pauper paid the whole year's rent. It does not appear how the succeeding occupier came in. The duty of a tenant on quitting possession is to give up the premises to his landlord; it was essential to the appellants case that there should have been a surrender, but nothing of this kind is stated. The rent is not shewn to have been paid before the end of the year. nor does any intervention of the landlord appear previous to that time Abandoning does not determine a tenancy; the tenant held till he show give up to the landlord, and that, according to the case, must be taken to have been at the expiration of the year.-Littledale, J. It should have a peared that the holding was put an end to, not merely that the possession was abandoned. If the pauper had given up the premises, and the landlord, with his assent, had accepted Mary Palmer as tenant, that would have been a surrender by act and operation of law, as in Thomas v. Cook ( But we are not informed how Palmer came into possession.-Parke, J. The statute is not clearly penned, but construing it as other acts and writings are construed, we must suppose a distinction intended between lands and houses; that an occupation of the one for a year is required, but not of the other. In this case, for the purpose of the act, the house was the paupers during all the year. Unless it could be shewn that a regular surrende took place, or that another person was let into possession with the consent d the pauper as tenant, (as in Thomas v. Cook,) we cannot say that his interes ceased until the year was out. Order of sessions quashed. 7. Evidence of settlements by estate. 7. Evidence of Settlements by Estate. We have already collected the law relating to this description of sete ment. (ante, 589-636.) We have now only to state a few points on evidence of such settlements. As the law has provided that a purchase of an estate, for less than 3 shall not suffice to give a settlement, it seems necessary, in all cases, to pro that the title of the owner is not liable to this objection before it can be he sufficient to give him a settlement. The nature of the evidence necessary for this purpose, will depend up the nature of the estate, and the mode by which the party acquired it. Thus proof of possession by an ancestor, and descent to an heir, whic may be given by any one who knows the facts, discloses enough of the tit to make out a prima facie case, that the latter did not purchase for a mone (a) 6 B. & C. 88, ante, 580. (b) Ibid. 92. (c) 2 B. & A. 119. consideration. And his relationship as heir may be proved by persons belonging to the family, speaking from their own knowledge, or from what they have heard from deceased members of the family, respecting the relationship of its different members, aided by parish registers, &c. [See "Hearsay Evidence," ante, 802.] In the case of a widow found in the possession of an estate, which was her husband's proof of possession on the part of the husband before, and at the time of the marriage-proof of the marriage itself—of his death—and of her subsequent possession, will, primâ facie, establish such an estate in her as confers a settlement. If the party hold the estate as tenant by the curtsey, or otherwise, in right of his wife, the marriage, and either possession by the wife before marriage, or the title by which it came to her after marriage, must be proved. Secondly, Of evidence of settlement, &c. 7. Evidence of settlements by estate. administrator. If the party hold as executor, to prove his title the probate must be pro- of executor or duced, which is admissible without proof; or, an examined copy of the probate may be given in evidence; or the Probate Act Book of the Ecclesiastical Court may be produced, or an examined copy of the entry in that book in lieu of the book itself. If the probate has been lost, the ecclesiastical courts will grant what is called an exemplification of the probate from their records, which may be given in evidence. The like course may be taken if the party was administrator. But if the letters of administration are lost, their place may be supplied by producing a certificate from the ecclesiastical court that administration was granted, or by proving an examined copy of it. But the proof from the records of the ecclesiastical court may be employed, as well after the loss of the letters as before it. It will seldom happen that a party claims a settlement by estate as guardian in socage; it will suffice, therefore, to state generally, that such title must be supported by proof of the following facts, viz.: The seisin of the ancestor, by showing possession of the land, or receipt of rent, or a demise to, and possession by, a lessee;-the death of that ancestor;-the heirship of the ward; the fact of his being under the age of fourteen at the time of the guardian's entry upon the land, which fact may be proved by any witness acquainted with the family of the ward;-the relationship of the guardian to the ward, as nearest in degree of those relations to whom the inheritance cannot, by possibility, descend, must be proved, among whom the eldest brother is preferred, and next the eldest sister, then the father or other male ancestor; and, in default of these, one of such relations who first seizes the heir. If the estate was held under an elegit, the requisite proofs are: 1. The of tenant by elegit. judgment recovered; 2. The elegit taken out upon it; 3. The inquisition made by a jury; 4. The sheriff's return, by which the land is assigned to the creditor. If the party possessed the estate, or had he a reversion or remainder, or an equitable interest in it, under a devise, marriage settlement, mortgage deed, deed of trust, or some written agreement, the devise, if of a freehold interest, must be proved by the production of the will, signed and attested in the manner prescribed by the statute of frauds (a). If the devise be of a lease for a term of years, the interest is a chattel interest, and therefore the probate, and not the original will, is the proper medium for proving it. When the claim is under a marriage settlement, or any other conveyance, the respective deeds, or other conveyance, must be duly proved (b). When it is under such a written agreement as will pass an estate sufficient for a settlement, the agreement must be shown to have been executed in the manner required by the statute of frauds (29 Car. II, c. 3), the third section of which enacts, "That no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of, any messuages, manors, lands, tenements or hereditaments, shall be assigned, granted or surrendered, unless it be by (a) See proof of wills, ante, 799. (b) As to which see ante, 797. Title by devise of a freehold proved by the interest is to be will. Proof of a claim under a deed, or written agree ment, according to the third sec tion of the statute of frauds. Secondly, Of evidence of settlement, &c. deed or note in writing, signed by the party so assigning, granting or sur rendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law." The fourth section of the statute of frauds regards only the original crea7. Evidence of settlements by tion of interests in land. An agreement for any such interest must be signed estate. by the parties or by their agents; but the authority of the agent, under this According to the section, is not required to be in writing. And it must be proved, that the whole purchase-money was paid or tendered in payment by the party let into possession. The cases on this subject are already given under the title "Settlement by Estate," (ante, 589), and need not be here repeated. fourth section. Proof of a copyhold interest. Evidence of identity. Land appurte sufficient. If the claim be to a copyhold estate, either the original entries on the court rolls, or stamped copies of those court rolls, must be produced (a). To evidence of title must, in each case, be added some proof of the identity of the party; and of a residence for forty days in the parish in which the estate, or some part of it, is situated. It seems that land, held as appurtenant to an office, will not give a settlenant to office not ment by estate. The case was as follows: By an award, made by the authority of the lord of the manor and certain commoners, an allotment of a portion of the lands inclosed was awarded to "the shepherd for the time being." It was also provided, by the award, that the shepherd was to keep the fences in repair. The shepherd had been for many years appointed by the commoners, and was liable to be discharged like any other yearly ser vant. It was held, that a person who had, in fact, filled the situation of shepherd, and enjoyed the allotment for several years, did not thereby gain a settlement by estate. His situation being yearly, from which he was liable to be discharged, and he taking to the allotment, not by virtue of the award, (to which he was a stranger), but by virtue of his situation as shepherd, the Court considered his occupation of the allotment to be a part of the consideration or wages for his service, and that he had no title, either legal or equitable, to the land, but merely the right to occupy as long as he was in the place of shepherd. Rex v. Šouth Newton, E. T. 1830; Steer's Par. L. 8. Evidence in settlements by office. Proof of the appointment. 594. 8. Evidence in Settlements by Office. (b) To establish a settlement by serving a public annual office, it must be proved that the office in respect of which the settlement is claimed, comes within the description and meaning of the act. It has recently been intimated by the court of King's Bench, that an office for a longer period than a-year, is not an annual office within the meaning of the statute. As for instance, the office of parish clerk, which is for life, although it seems to have been considered in some earlier cases, that the office of parish clerk came within this denomination. The mistake has, it appears, arisen from the fact of its having been clearly settled, that such an office gives a settlement; but the more correct opinion is, that it confers a settlement by estate, as he has a freehold in his office (c). The office being proved to be such as the statute requires, (for instances of which, see ante 636 to 651), it will be requisite to prove, that the party was duly appointed to the office-that he served it for a-year; and lastly, that he resided for forty days in the parish, and in that part of it where the duties of the office were exercised. The appointment may either be shown by proof of the formalities or circumstances which attended the first placing of the person in the office; as for instance, by means of the books or rolls of a manor or parish, by his warrant, or deed of appointment, if he has any, or by means of witnesses who were present at the appointment, if made vivá voce. The appointment (a) Doe v. Hall, 16 East, 208. (c) Rex v. Stogursy, Hil. T. 1831, (b) As to the law of settlements by post, addenda. office, see ante, 636 to 651. |