poor's rate, and shall have paid the same in respect of such tenement

for one year.

This enactment leaves the settlement by payment of rates on the same footing as before, viz. under 3 & 4 W. & M. c. 11, s. 6. Thus if an occupier is assessed to any "rate" (e. g. the poor's rate) in respect of his tenement, and pays it, and resides in the parish for forty days afterwards, he will gain a settlement, whether he be rated for or pay any other parochial tax or not, if the tenement in respect of which he is rated will satisfy 6 G. IV. c. 57, s. 2, and that act is in other respects complied with; whether the actual occupation imposed by 1 W. IV. c. 18 is fulfilled or not (u).

As to stating this settlement in examinations and grounds of appeal, see ante, sections 2 & 3 of this Chapter.

SECTION X.

OF SETTLEMENT BY ESTATE.

BEFORE 1722, a person who enjoyed a legal or equitable estate, of whatever value, gained a settlement by forty days' residence in the parish where it lay (v), for it was never meant to banish men from the enjoyment of their own lands (w). In that year it was enacted by 9 G. I. c. 7, that no person or persons shall be deemed to acquire a settlement in any parish or place by virtue of any "purchase of any estate or interest in such parish or place, whereof the consideration for such purchase doth not amount to the sum of 301. boná fide paid, for any longer or further time than such person or persons shall inhabit in such estate, and shall then be liable to be removed to such parish or place where such person or persons were last legally settled, before the said purchase, and inhabitancy therein."

This act therefore confines the acquisition of a permanent settlement by estate acquired by payment of money to estates for which 301. has

(u) Reg. v. St. Mary Kalendar, ante, pp. 822, 826. See R. v. Ringstead, 7 B. & C. 607, relied on arguendo, 9 Ad. & E. 628.

N. B., in R. v. St. Mary Kalendar, more than one of several poor's-rates made during the year was paid, but one was left unpaid. No assessment to or payment of any other rate was shown. In Rey. v. St. Olave, Southwark (Inh.),

13 L. J. (M. C.) 161, the ground of appeal was, that pauper "had paid one or more of the parochial rates or taxes in respect of the said house," and was not questioned on that point.

(v) R. v. Deddington, Stra. 1193; 2

B. & Adol. 877.

(w) Per Lord Holt, Ryslip and Harrow, Salk. 524.

been paid by the purchaser, but leaves the settlement by estates obtained in other ways as before. In all cases, therefore, the first question is, Whether an estate of the nature proposed confers a settlement? and if it is suggested that the consideration money was under 301. other questions may arise, e. g. Is the estate within the restriction of 9 G. I. c. 7, as acquired by purchase? Next, if it is, was the consideration for the purchase of the amount contemplated by the statute? If these questions are decided against the settlement, a further question may arise, whether, though no permanent settlement is acquired by estate, the party may not be so connected with it, as to be irremovable during his possession.

What amount of Estate will confer this Settlement with regard to 9 G. I. c. 7.]-The estate must be an interest issuing out of realty, so that an annuity charged on personalty confers no settlement (x). A right of common actually enjoyed may confer it; but where the freemen of a borough, acquiring their freedom by descent, had, simply as such, and during residence in the borough, a right of pasturage over a moor, with the privilege of cutting turf, it was held that a freeman residing in the borough who had never exercised his right, or had commonable cattle, had not any estate which rendered him irremovable, but a mere inalienable franchise, which would not suffice (y). The like was held in the case of a burgess of a borough, entitled as such to receive a share of the rent of corporate land (z). But the nature of the tenure is immaterial; nor is the duration of the estate material, provided it is of sufficient permanency, and so conferred by will or otherwise, as to ensure to the party residing a right to remain for forty days (a). Thus it may be a freehold estate in fee (b), or for life (c), or a copyhold (d), in dower (e), a leasehold interest determinable on lives (ƒ), or for a term of years (g), (which includes a tenancy from year to year (h), or for even half or a quarter of a year) (¿), or an equitable estate (k); but not

(x) R. v. Stockley Pomroy, Burr. S. C. 762.

(y) R. v. Warkworth, 1 M. & S. 473.

(z) R. v. Belford (Inh.), 10 B. & Cr. 54.

(a) See R. v. Cassington, 2 B. & Ad. 874.

(b) R. v. Great Farringdon, 6 T. R. 520.

(c) R. v. Shenston, Burr. S. C. 468. (d) See 2 Nolan, 71; R. v. Haddenham (Inh.), 15 East, 463, even before

admittance; R. v. Thruscross, 1 Ad. & E. 126.

(e) R. v. Painswick, Burr. S. C. 783; R. v. Northweald Basset, 2 B. & C. 724. (f) R. v. Marwood, Burr. S. C. 386. (g) Murphy v. Grandborough, Stra. 97. See 2 Adol. & E. 536; 1 B. & Adol. 750.

(h) 3 T. R. 13; Doe d. Shore v. Porter.

(i) Litt. s. 67; Co. Lit. 54 b.; 5 B. & Adol. 768, Doe d. Phillips v. Roe.

(k) Doug. 767, R. v. Wivelingham.

a mere tenancy at will (k), or an estate in remainder or reversion (1), or an annuity though specifically charged on an estate (m).

Inferring Original Title from Long Possession.]-It is not necessary that strict proof of an indefeasible title should be given as in ejectment; for if the party has had twenty years' undisturbed possession, or even rather less by a few weeks, without any acknowledgment, the possession is a sufficient title from which to presume a grant, though it had its origin in wrong (n). Thus, where a cottage was built on the waste thirty years before, and had descended to the daughter, the lord making no claim, it was holden to be a sufficient title to found a settlement (o). Again, where a party or his son has resided for twenty years, within a few weeks, on an estate as given by a relative, although there be no proof of any conveyance, yet a settlement will be gained; for "the strict rules which prevail on the trials of ejectments ought not to be applied to settlement cases;" and under such circumstances a conveyance, if necessary, might be presumed (p). The following cases further illustrate this principle.

The grandfather of a pauper had given to his father, (but it did not appear in what manner,) thirty years ago, a piece of land, on which he built a house, and lived in it several years with his family, of which the pauper was one, and then removed into a third parish with his said family, lived there some years, and let to a tenant the aforesaid house which he had built. Ten years ago he returned to his said house, and has resided in it ever since, never having paid any rent or acknowledg ment for it. The pauper was part of his father's family at the time the house was built, and continued so for fifteen years afterwards, when he married, left his father's family, and never returned. Pauper was thus emancipated before his father had obtained a perfect title from a possession of the house in question for twenty years; and it was said that as here was a mere naked possession, but no title, he was not irremov

(k) R. v. Widworthy, Burr. S. C. 109; 1 B. & Adol. 750. See 1 Ad. & E. 530.

(1) R. v. Willoughby with Sloothby, 10 B. & Cr. 62; R. v. Ringstead, 9 B. & Cr. 218; R. v. Eatington, 4 T. R. 177.

(m) R. v. Stockley Pomroy, Burr. Set. C. 762; R. v. Melbourn, id. 244; Stra. 1225.

(n) R. v. Butterton, 6 T. R. 554, where Lord Kenyon cites Wilmot, J's. dictum, that the strict rules which pre

vail on the trials of ejectments ought not to be applied to settlement cases; but see R. v. Chew Magna, 10 B. & Cr. 747, post; also Doe d. Wilkins v. Cleveland (Marquis), 9 B. & C. 864; and 2 M. & W. 503. Possession, to confer a right, must be adverse against a person having a legal title, per Littledale, J., in R. v. Okeford Fitzpaine (Inh.), 1 B. & Adol. 259.

(0) Ashbrittle v. Wyley, Stra. 608. p) R. v. Butterton, 6 T. R. 554.

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able till twenty years had elapsed, and had not acquired a settlement by his residence in it. But it was held, that, as he was in for fifteen years under some title or other, and has continued in possession for fifteen years more, and up to the present time, it must therefore be inferred that the father had a title at the former period, by the gift of his grandfather" (q).

A. being seized in fee of a close of land, gave a small piece without writing to B., who built a cottage there and inhabited it for fifteen years. A. then told him he had sold the land to C. and having asked B. to give him possession, and sell him his right, agreed to give him 37. for giving possession, B. taking the materials. B. pulled down the cottage, carried away the materials, and delivered possession to C. Held, that B., being mere tenant at will to A., did not gain any settlement by estate, in respect of his undisturbed possession for less than twenty years (r).

The husband of a pauper being settled in parish A., enclosed a small piece of waste land in parish B. from a common in 1800, and held and cultivated it till Christmas, 1827, when he conveyed it by deed to a buyer. He had not lived in parish B. till 1825, when he removed into it, and in 1826, built a hut on the land, where he lived a year and a half. In 1806, 1811, and 1817, the parish officers and freeholders perambulated the parish, in order to mark their boundaries and assert their rights of common. On these occasions they pulled up a part of the fence of the land so enclosed, dug up part of the bank, and rode through the enclosure. In 1820, or 1822, similar acts were done on a perambulation made by order of the lord of the manor. Held, that as no acknowledgment had ever been paid for the land to the lord, there was an adverse possession, notwithstanding the acts of interruption, so that the pauper's husband gained a settlement in B. by estate (s).

A. enclosed an acre of land from a common and built a house on it, for which the parish gave him materials. Fourteen years after, he gave without writing part of the land thus enclosed to B., who built a cottage on it, and afterwards enclosed a further portion of the common, and occupied the whole premises thus given for about sixteen years. During that time the copyholders in their septennial perambulation to break down the fences of encroachments on the common, twice broke down the fence between the common and the land newly enclosed by B. (the fence between it and the old enclosure by A. having been previously

(q) R. v. Calow, 3 M. & S. 22.

R. v. Chew Magna, 10 B. & Cr.

747.

(8) R. v. Wooburn, 10 B. & Cr. 846.

removed), and passed over that part which had been enclosed by B. Held, that B. had a settlement by estate (1).

After seventy years' possession of land inclosed from a waste without interruption by the lord, the lord broke down the enclosure and then brought ejectment. Held, that if there was sufficient evidence from which to presume a licence, the breaking the inclosure was a sufficient countermand of it (u). Where a possession began under a tenancy at will in 1807, and continued till 1831, without making any acknowledgment to the lessor, and in 1833, 3 & 4 W. IV. c. 27, ss. 2 and 7 passed, it was held that the possessor's heir at law acquired no right to the land against the original lessor and those claiming under him (x).

Possession and Residence undisturbed for more than Forty Days under a Claim of Title without Fraud.]-J. F., being seized in fee of a cottage, demised the same to the overseers of the poor of the parish (for the legal consideration of 5s. and the moral one of having received great assistance from them), for one thousand years at a pepper-corn rent, and, with some intervals of absence, continued to reside in it till his death. A short time before his death, with the consent of the overseers, his daughter and heiress came to take care of him, and resided with him till his death, and having continued there for about six weeks after, was found there by her husband, who laid claim to the cottage in her right. The overseers having mislaid the conveyance to them, took no steps to dispossess the paupers, till it was found some years after. The single question was on the effect of the residence of more than forty days on the premises, under a claim of some title, and without fraud. Bayley, J., in delivering the opinion of the court, said, "For any thing that appears to the contrary, the husband of the pauper believed he had some right in the premises; and the parish officers, who alone could gainsay that right, took no steps to oppose his occupation, but acquiesced (from whatever cause matters not) for some years. This is no case of fraud, nor has any been found; and no measures having been taken by

(t) R. v. Pensax, 3 B. & Adol. 815. The court, after hearing R. v. Chew Magna cited, held they could not distinguish the case before them from R. v. Wooburn.

(u) Doe d. Beck v. Heakin, 6 Ad. & E. 495; S. C. 2 N. & P. 669. See as to act of lessor in determination of will, Ball v. Cullimore, 5 Tyr. 753; Doe d. Burnett v. Turner, 9 M. & W. 643; 7

id. 226.

(x) Doe d. Thompson v. Thompson, 6 Ad. & E. 721. As to acquiring right by twenty years' adverse possession, see Doe d. Thompson v. Clark, 8 B. & C.717; Doe d. Jackson v. Wilkinson, 3 B. & C. 413; Doe d. Pring v. Pearsey, 7 B. & C. 304. Also 3 & 4 W. IV. c. 27, ss. 2, 3, 9 B. & C. 868; Greeby v. Preston, B. N. P. 104. Ante, p. 830, note (n).