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ment.

another person,

came in.

The

rent. a settlement

the house for a year.

Secondly, Of of Dounham Market, of one Jonah Weston, for a year, at the rent of 101. evidence of set. He occupied the house from that time until a few weeks before old Michael

tlement, &c. mas, 1820, when he removed to another house. The house was then occu6. Evidence of

pied by one Mary Palmer. The pauper paid the whole year's rent, and settlement by

took a receipt. The court of quarter sessions found that the pauper had, renting a tene- 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 year ended, and

to be, Whether the pauper, having entirely given up possession of the house, they were then occupied by

four or five weeks before Michaelmas, and being succeeded by another occu

pier, 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. 111. c. 50, so how that party

as to gain a settlement in the parish of Dounham Market.-Bayley, J. pauper paid the This is a plain case. The distinction between land and houses, under 39 whole year's He gained 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 c. 50, by holding 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 të
have continued, unless a determination of it be shewn. The case finds thu
the pauper hired this house for a year, and occupied it till a few weeks
before Old Michaelmas, when he abandoned the possession, and remored u
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 possessm
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 rear,
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 in
have been at the expiration of the year.Littledale, J. It should have as
peared that the holding was put an end to, not merely that the possesse
was abandoned. If the pauper had given up the premises, and the land!
lord, 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. Cowok te
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 writer
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 pauper
during all the year. Unless it could be shewn that a regular surrender
took place, or that another person was let into possession with the consent t
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 We have already collected the law relating to this description of settle settlements by ment. (ante, 589_636.) We have now only to state a few points on the

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 put that the title of the owner is not liable to this objection before it can be beri sufficient to give him a settlement.

The nature of the evidence necessary for this purpose, will depend uji 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, wbie may be given by any one who knows the facts, discloses enough of the til to make out a primă facie case, that the latter did not purchase for a nude

estate,

(a) 6 B. 8; C. 88, ante, 580.

(6) Ibid. 92.

(c) 2 B. & A. 119.

estate,

consideration. And his relationship as heir may be proved by persons Secondly, Of belonging to the family, speaking from their own knowledge, or from what evidence of setthey have heard from deceased members of the family, respecting the rela

tlement, &c. tionship of its different members, aided by parish registers, &c. (See 7. Evidence of “ Hearsay Evidence," ante, 802.]

settlements by 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.

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

administrator.

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 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 Title by devise equitable interest in it, under a devise, marriage settlement, mortgage deed, interest is to be deed of trust, or some written agreement, the devise, if of a freehold interest, proved by the must be proved by the production of the will, signed and attested in the will. 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, Proof of a claim the respective deeds, or other conveyance, must be duly proved (6).

under a deed, or

written agree. When it is under such a written agreement as will pass an estate suffi- ment, according cient for a settlement, the agreement must be shown to have been executed to the third sec: in the manner required by the statute of frauds (29 Car. II, c. 3), the third tion

af the statute 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 surr

urrendered, unless it be by

(a) See proof of wills, ante, 799.

(6) As to which see ante, 797.

estate.

hold interest.

Secondly, Of deed or note in writing, signed by the party so assigning, granting or sur evidence of sete rendering the same, or their agents thereunto lawfully authorized by writing, tlement, &c. 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

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 fourth section.

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. Proof of a copy

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). Evidence of iden. To evidence of title must, in each case, be added some proof of the identity.

tity of the party; and of a residence for forty days in the parish in which the

estate, or some part of it, is situated. Land appurte. It seems that land, held as appurtenant to an office, will not give a settlewant to office not ment by estate. The case was as follows: By an award, made by the an

thority 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 servant. 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. South Newton, E. T. 1830; Steer's Par. L. 594.

sufficient

8. Evidence in settlements by othce.

8. Evidence in Seulements by Office. (6) 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 oflice 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 viva voce. The appointment

Proof of the appointment.

(a) Doe v. Hall, 16 Fast, 208.

(c) Rer v. Stogursy, Hil. T. 1831. (6) As to the law of settlenients by post, addenda. office, see ante, 636 to 651.

8. Evidence in

the office for a year.

Residence for

may also be inferred from proof of the undisputed exercise of the office. And Secondly, Of when the evidence is in the last-mentioned way, it will be for the opposite evidence of sitparty to impeach the legality or validity of the appointment.

tlement, &c. The execution of the office for a whole year, may be proved cither by the officer himself, or by any other person who is able to say, from his own settlements by personal knowledge, that the duties of the office were, in some one instance office. at least, performed by the person appointed; and that he was reputed in the The execution of parish to hold that office. Or it may be proved by showing that another, acting as deputy to the person appointed, oificiated in his place. But of course a more constant and uniform discharge of the duties of the office should be proved, if the appointment is to be inferred from the exercise of such duties, instead of being directly proved by independent evidence. But where a legal appointment is actually proved, then very slight evidence of the execution of the office is all that will be required.

It is in the last place necessary to prove a residence for forty days in the parish, and in that part of it where some of the duties of the oflice were to furty days. be performed.

Rex v. Corfe Mullen, 1 Bar. f Adol, 211, will illustrate this subject, (see ante, 646, 647.)

See Rex v. Stogursy, ante, 842, and post, addenda.
In this, as in all other kinds of settlements, a residence for forty days in

Forty days' resi the parish, and in that part of it where some at least of the duties of the dence must be office were to be performed, must be proved. This point will be established proved. without difficulty, (unless the boundary of the parish should happen to be in dispute) by the testimony of the party himself, or of any other person cognizant of the fact.

9. Evidence of Settlement by Payment of Rates. (a) Settlements by payment of rates were virtually abolished by 6 Geo. IV. c. 57; before that period, down to June 22nd, 1795, they were governed by settlement by 35 Geo. III. c. 101, s. 4, having, anterior to the passing of which statute, payment of rates. rested upon the law as it stood upon the 3 W. & M. c. 11, s. 6.

In all cases, whatever the period in which the settlement by payment of rates is to be established, there must be proof that the person was either actually or constructively rated in respect of his tenement, that he paid such rate, and that he resided in the parish forty days after payment.

The rate itself is the best evidence of the rating, and must, in general, be produced. Rex v. Coppull, 2 East, 25 ; (ante, 659 ;) but if it be in the custody of the opposite party, who refuses to produce it upon due notice, or if proof be given of its destruction or loss, then secondary evidence is admissible of its contents. In this latter case, some evidence must be given for the purpose of authenticating it; if, however, it be proved to be in the possession of the opposite party, and they having had notice, refuse to produce it, no further proof is necessary to entitle the party to give secondary evidence of its contents.

In all other cases it must be duly authenticated; the best proof of which authentication is afforded by evidence of the hand-writing of the justices who allow it.

As by 17 Geo. II. c. 3, s. 2, the churchwardens, &c., are to give to the inhabitants of the parish, copies of the rate on demand; such copy proved to have been so given, seems to be good secondary evidence of the rate, without being proved to be an examined copy, but any other copy must be proved to have been compared with the original rate.

If no copy is produced, and it is not shown that one exists within the knowledge of the party proving the rate, oral evidence may be given of its contents.

If the rate refer to the person by name, his identity, as the person so

9. Evidence of

(a) As to this description of settlement, see ante, 651 to 661.

9. Evidence of settlement by

Secondly, of referred to, may be proved by any one who knows the fact. If he is not evidence of sete named in the rate, it must be shown by distinct evidence, that he was the tlment, &c.

person contemplated by the parish officers, in rating the tenement of which he was possessed, and that the fact of his occupation at that time was known

to the parish officers. payment of rates.

Thus, for instance, if the assessment be upon "J. S., or the tenant of Black Acre." Here it is necessary to prove that J. S. was the landlord, and that A., whose settlement is in question, was the tenant.

Or if the rate had been upon J. S., a former occupier who was dead, it must be shown that the parish knew of the death at the time they made the rate, and that A. was at that time in the occupation of the premises.

As to what in law may be considered a payment, and the time when such payment should be made. (See ante, 656, &c.).

To establish a settlement by rating, between the 22nd of June, 1795, and the 22nd of June, 1825, in addition to all the above proofs, it must be shown, that the tenement, in respect of which the party is rated, was of the yearly value of 101. at the time the rate was made.

This subject is very fully discussed in Rex v. Lower Heyford, 1 Bar. Adolph. 75

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