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stances for the support of this general position, are sufficient to establish it. The pauper's husband was settled at White Rooding, from which place he went away, and deserted his wife and children. The wife left White Rooding, and went, with her children, and " lived forty days without her husband, in a copy"hold tenement of her husband's own, at "Aythorp Rooding." She was removed from thence to the parish of White Rooding. The Court were unanimously of opinion, that “although the wife could not gain a settlement for her husband by residing forty days upon his own estate, yet that she was irremovable from the property of her husband; for she had a natural, or at least a matrimonial right to go to her husband's estate; and as there did not appear to be any dissent of her husband, it was rather to be presumed, that he consented."

A pauper resided several years on a lease, hold estate granted to him for three lives, in consideration of two guineas fine, and one shil ling rent.. He became actually chargeable, and the question was, whether, under this extreme circumstance, he could be removed to the place of his settlement. The Court of B. R. said "it was one thing to say, that a person may not be removed, but another to say, that they gain a settlement. That the pauper could not

Burr. S. C. 412,

be removed from his own, but that being a purchaser under 307. and the estate not coming upon him by operation of law, he gained no settlement by forty days residence on it.*

of law.

What shall be understood to be possession Possession by" operation of law," sufficient to enable by operation a person to acquire a settlement by forty days residence, on their own estate, may be collected from the following. One case was, that, thirty years since, the father of a pauper built a cottage upon the waste in a place called Wyley, belonging to the Earl of Pembroke, and lived on it till his death, about three years since, when it descended to his daughter Elizabeth, then married to John Darby; that they entered and enjoyed it three quarters of a year, and then sold the possession of it to John Wyvel, who has enjoyed it ever since, without any molestation from the lord, but no original grant appears: and whether John Darby and his family are settled in Wyley, where they lived three quarters of a year in the cottage in right of his wife, or in Ashbrittle which was the place of his last settlement before the mar riage? was the question; and by the order of two Justices, and the order of Sessions, it is adjudged to be a settlement in Wyley.-By the Court. The order must be confirmed; he lived forty days in the capacity of a person

* 5 East's R. 40.

irremovable, and that is a settlement of itself. Here has been an enjoyment for thirty years, during all which time the lord never claimed any thing. The least that can be made of it, is a title by disseisin, and a descent is cast, This man had undoubtedly a title against all the world but the lord, and even against him it may be doubtful, after so long a possession. In ejectment, he might either make, or defend, a title by twenty years possession. Therefore in this case there is no colour to determine against his right, when the lord does not think fit to impeach it; though if he did, it would never be allowed to determine the title upon an order of removal, but upon an ejectment only.'

In conformity with this determination, have been a great number of others up to the present time, all founded on the same reasoning, and involving nearly the same questions.

By marriage A person residing on an estate by virtue of marriage, will thereby gain a settlement; so though the premises be vested in trustees for the separate use of the wife, the husband, by re. siding on the estate for 40 days, will be legally settled; for it would be refining too far to say, that an equitable estate will not confer a settlement as well as a legal one.†

2 Str. 608.

† 3 Term R. 114.

Dower.

On similar principles it has been decided, Right of that the widow of a man, who dies seized of a house, residing in it 40 days in right of her dower; and children residing for the same period, on an estate devised to trustees to be sold for their benefit, before such sale; will gain a settlement.*

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And where a person bequeathed by will an estate, originally purchased for less than 30%. to trustees to let for his daughter's life and pay her the rent, and after her decease, to his right heirs; the trustees suffered the pauper to reside on the premises more than 40 days after the decease of her father, and the Court of B. R. determined, that by so doing she gained a settlement, for she did not reside as a tenant, and whether her title were a legal, or only an equitable one, was the same thing as to gaining a settlement by residence on it.†

administra

But no person, who is entitled as an executor Executor or or administrator, can gain any settlement by tor. a residence on the estate, before he has obtained a probate or letters of administration.‡ Except such executor or administrator be sole next of kin; and then it has been holden that such a case forms an exception.§

And after twenty years quiet possession, the 20 years

* Cald. Ca. 474.-Burr. S. C. 793.

† 16 East's R. 127.

Burr. S. C. 109.

§ 8 East's R. 405.

quiet pos

session.

Gift without regular conveyance.

Accession 'without residence.

party shall be deemed to have gained a settlement, though no administration was ever in fact taken out.*

Upon the same principle, if a person reside on an estate given to him by a relative, for a long series of years, without interruption, he will thereby gain a settlement, though no for. mal conveyance may have actually been executed; but this is only on the ground of long possession throwing some sort of obscurity over the original transaction, and therefore affording a ground for presuming a legal commencement.†

For in another case, where a voluntary conveyance of a trifling estate had been of short standing, from a father to his son, the son was held not to have gained a settlement on it by forty days residence," because," said the Court of B. R." every estate not acquired by descent, is in law a purchase, and the party cannot hope to be in a better condition, because he pays no money for the land.”‡

Accession to an estate without a residence of forty days will not gain a settlement.§

But the forty days residence need not of necessity be successively.||

*Burr. S. C. 444.

† 6 Term R. 554.

Burr. S. C. 56.—386..-560.--Cald. C. 416,

§ 1 Str. 476.

Burr, S. C. 125.

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