a settlement by residing on this estate, but it was contended that he did not gain that settlement until twenty years had elapsed from the time the piece of land was given him, and as the pauper before that time was emancipated, he was not entitled to this settlement of his father: but the court held that as the father had uninterrupted possession of the estate for thirty years, they would presume that he had a legal right to it from the commencement, and if so, he gained the settlement before the pauper married and separated from him (w). So, where a man died intestate, leaving amongst other property a small estate for years, which one of his daughters and her husband (without taking out letters of administration) took possession of, and occupied for nearly thirty years: the court held that the husband thereby gained a settlement; although he entered without taking out administration, yet as he had since gained a positive right by more than twenty years' possession, they thought that sufficient (x). So, where a man devised a house and croft to his daughter (who was married) for life, remainder in fee to her son; and the daughter and her husband took possession and resided on the property for six months, when the daughter died; the husband, however, continued in possession afterwards for thirty years, the son having enlisted and gone abroad, and not having since been heard of; the court held that the husband thereby gained a settlement (y).

So, where a man is in possession of an estate, or in receipt of the rents and profits of it, under a merely equitable title, we have seen (ante, p. 628) that he may thereby gain a settlement. So, where a man seised in fee of a cottage and garden, became chargeable to the parish, and thereupon, in consideration of the money he received from the overseers, and what he might thereafter receive, he demised the cottage and garden to them and their successors for 1000 years, at a peppercorn rent; he afterwards left the cottage and resided elsewhere, but shortly before his death he was again placed in it by the overseers, and his daughter, who was married, came there to take care of him; after his death, the daughter and her husband remained in the cottage, claiming a right to it as her property by descent from her father; and the overseers having mislaid the lease, the husband and wife remained in possession for five years, when the overseers recovered the premises from them: the court held that they thereby gained a settlement; they held the estate five years, under a bona fide claim of right, before that right was contested, and the court thought that sufficient (z).

(r) R. v. Calow, 3 M. & S. 22. (x) R. v. Cold Ashton, Burr. S. C. 444.

(y) R. v. Shenstone, Burr. S. C. 468.

(z) R. v. Staplegrove, 2 B. & A.

But where a man, to whom his uncle had given a small piece of land by parol, built a house upon it, and lived in it for fifteen years; he then agreed, though unwillingly, with his uncle, for a consideration of 31., to take down the house, take away the materials, and give him back the piece of land, which was then sold by the uncle, with land adjoining, to a purchaser: the court held that the nephew gained no settlement by estate; the conveyance by parol gave no estate, the possession for fifteen years gave none, and when the land was given back to the uncle, it was clear he did not claim it through the nephew, which shows that the latter had no estate in it, and gained no settlement (b). So, where the lord of a manor granted to the pauper a licence to erect a cottage on the waste, at a quit-rent of 108. 6d. without fine, and he accordingly built a cottage which cost him more than 301.; the lord afterwards, upon his application, also granted him a licence to inclose a piece of land from the waste for a garden, without fine or quit-rent, and which he accordingly inclosed: both licences were presented by the homage; the pauper resided in the premises for a year and a half, and then sold them the court held that he gained no settlement by his residence; the licence was not a grant, but a mere licence to occupy, which might be revoked at pleasure; perhaps a court of equity might interfere in such a case, but it could not be said with certainty that they would, and it was only where the party had a clear equitable interest, and not merely such a claim as might induce a court of equity to interpose in some way or other, that the court could hold that the party claiming could gain a settlement (c). So, where one Goodwyn obtained a licence in writing from the lord of a manor to build a cottage on the waste, and he built it accordingly, and then sold it to one Bailey, who sold it to the pauper for 307., but no conveyance was executed: the court held that a mere licence from the lord did not operate as a grant, or confer any title; that this was therefore a purchase of an interest of which they could not take notice; and, consequently, the pauper did not gain a settlement (d). So, where a man obtained from the lord of a manor a grant of a small part of the waste, at a quitrent of 2s. 6d., on which he built three cottages: but as there was no custom stated for the lord to make such a grant, the court held that the party gained no settlement; for the lord of a manor cannot make a new copyhold, unless there be a custom of the manor enabling him to do so (e). Also, where in 1732, Lord Weymouth let a cottage to one Martin, at a yearly

(b) R. v. Chew Magna, 10 B. & C. 747.

(c) R. v. Horndon-on-the-Hill, 4 M. & S. 562.

(d) R. v. Hagworthingham, 1 B. & C. 694.

(e) R. v. Hornchurch, 2 B. & A. 189.

rent of 4d., for ninety-nine years, if three persons, or any of them, should so long live; and Martin occupied for a considerable time; in 1784, his lordship, by a lease reciting that the cottage had lately come into his hands, let it on the same terms to one Gilling, who however never got possession of it; at the time of the making of this last lease, one Wolfe was in possession of the cottage, and claimed to retain possession, on the alleged ground that one of the persons for whose life the first lease was granted was still in existence, and he retained possession until his death in 1810; after his death the widow kept possession of the cottage until 1827, when she died, having devised it to her daughter Martha (the wife of one Hooper), whom she made her executrix: Hooper and his wife occupied it for three years, when Hooper sold it, and conveyed it to the purchaser by feoffment: when the second lease was made, the first had really expired, and Gilling, though he did not obtain possession, paid the rent, and no rent was paid by Wolfe, or his widow, or Hooper: the court held that Hooper thereby gained no settlement; Wolfe had no estate in the cottage; he did not hold adversely, for he claimed to hold under Lord Weymouth; and even supposing the widow's possession to be adverse, it continued only for sixteen years, and she therefore acquired no title, and could convey none; nor could Hooper be said to be entitled as to a term which had come to his wife as executrix, for the widow had no term in the cottage, the term, if any, being in Gilling (ƒ).

2. Residence.

What necessary to gain the What necessary to retain it, settlement, 647. 650.

What necessary to gain the settlement.] In order to gain a settlement by estate, there must be a residence of the party for forty days, either upon the estate, or in the parish in which it is situate. Very early in the history of settlements (1696), Lord C. J. Holt said, that having land in a parish will not of itself confer a settlement; but living in a parish in which one has land, will, for the statute was never meant to banish men from the enjoyment of their own lands (g). And therefore, where an estate in Wookey came by descent to a person settled and residing in Hinton Blewet, and the justices by order had him removed to Wookey as the place of his settlement: the court quashed the order, saying that he had no

(f) R. v. Axbridge, 2 Ad. & E.

520.

(g) Ryslip v. Harrow, 2 Salk.

524.

settlement in Wookey; no doubt if he had gone there voluntarily, he could not be removed (h). But where three copyhold houses and one freehold house in Sedgefield came to the pauper by descent; the copyhold houses were at the time let to tenants, and the pauper let the freehold house to one Wood for 31. a year, undertaking at the same time to sink a cellar and to make some repairs; the pauper at the time resided with his father at Houghton-le-Spring, but for the purpose of inaking the repairs above mentioned, he came over to Sedgefield, and was engaged there more than forty days, lodging all the while in the house Wood had taken from him: the court held that the pauper thereby gained a settlement in Sedgefield; whilst he resided in the parish, in which his estate was situate, he was irremovable, and being thus irremovable for forty days he thereby gained a settlement (¿).

And the residence must be for forty days for the reason already given, ante, p. 405. And therefore, where a man became entitled to a leasehold estate for his life, but died in twenty-eight days after it came to him: the court held that he gained no settlement by it; for to gain a settlement, he must have resided in the parish for forty days after he became entitled to the estate (k). But on the other hand, in a case where, during the time the pauper resided in Blakemere, a freehold estate descended to his wife and her sisters as coparceners; in about a month afterwards he and his wife sold their portion of the property to one of the other parceners, but the conveyance was not completed and executed for two or three months more; it was objected that as he disposed of his share of the property before he had it forty days, he could not have gained a settlement by reason of it: but the court held that the title remained in the pauper until the conveyance was actually executed, and as he had resided in the same parish in which the property was situate, more than forty days before that, he had thereby gained a settlement (7).

But it is not necessary that the forty days should be consecutive; it is sufficient if he reside in the parish forty days in the whole. And therefore where the pauper was tenant in common with his mother and sisters of a small freehold estate at St. Clure, and resided upon it until he was ten years old; he then went to St. Nyott's, gained a settlement there by hiring and service, and returned to St. Clure when he was about twenty; he then worked as a day labourer, sometimes residing with his mother and sisters on the freehold, sometimes elsewhere in the same parish, sometimes in the neigh

(h) Wookey v. Hinton Blewet, 1 Str. 476.

(i) R. v. Houghton-le-Spring, 1 East, 247.

(k) R. v. West Shefford, Say. 2; Burr. S. C. 307.

(1) R. v. Dorstone, 1 East, 296.

bouring parishes, for three years, and then sold his share in the estate; after his return from St. Nyott's, he did not reside for forty days consecutively on the freehold, or in the parish in which it was situate: but the court held that it was not necessary that he should reside forty days consecutively, it was sufficient if he resided there forty days at different times; nor was it necessary that he should reside upon the estate, it was sufficient if he resided any where in the parish in which it was situate (m). So, where the pauper, having given up a farm in Sowton, left his children at a public-house there, and went to Sydbury where he had a house and some land, and employed himself in cultivating the land; he did not reside in the house, there being no furniture in it, but he resided at an alehouse in the parish, and from time to time went to Sowton to see his children; he resided thus in Sydbury more than forty days altogether, but not for forty days consecutively the court held that he thereby gained a settlement in Sydbury; it was not necessary, in order to gain a settlement, that he should have resided upon the estate, it was sufficient if he resided any where in the same parish; nor was it necessary that he should have resided during forty days consecutively, it was sufficient if he lived in the parish forty days in the whole (n). And where the question was, what settlement a pauper derived from his father on the 27th April, 1837, the date of his emancipation, and it appeared that in 1828 the father purchased an estate in the township of Coneythorpe, and resided in it from that time with little intermission until his son's emancipation; but on the 6th April, 1836, he took a farm for a year in the neighbouring township of Cattal, and within six miles of Coneythorpe, at a rent of 461., and occupied it, was rated for it, paid his rent and rates, and resided more than forty days upon it, whereby he gained a settlement in Cattal on the 6th April, 1837; between that and the date of the son's emancipation he resided several days, but not forty, in Coneythorpe; and the question was, whether, after gaining the settlement in Cattal, he afterwards gained a settlement in Coneythorpe, by residing on his estate, it being contended that there must have been a fresh residence of forty days on the estate after he gained the settlement in Cattal, to confer on him a settlement in Coneythorpe: But the court held that the residence in Coneythorpe, after the 6th of April, 1837, might be joined with that which occurred before it, and being together more than forty days, the settlement of the father on the 27th April, 1836, when his son became emancipated, was

(m) R. v. St. Nyott's, 2 Str. 1116; Burr. S. C. 132.

(n) Sowton v. Sydbury, Burr. S. C. 125.

VOL. III.

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