Page images
PDF
EPUB

register, and proof of identity, or by the parol evidence of any person knowing the fact. The time of baptism will also appear from the register, and from that the time of birth may generally be implied; or the time of birth may be proved by the parents, or by any other person who can swear to the fact. The place of birth, also, may be proved by any person who can swear to the fact ; but the hearsay evidence of the declarations of the parents upon the subject, is not admissible (8). (8) R. v. Erith, 8 East, 539. ii. 415.

That the child was legitimate, is proved by proving the marriage of its parents ; which may be proved by the parents themselves (O), or by the register, &c. in the ordinary way, as already mentioned (u). (9) See Goodright v. Moss, Cowp. 591. ii. 405. (u) Ante, p. 33.

That the child was illegitimate, is proved by proving that the mother was unmarried at the time of the birth, and during the usual period of gestation previously to it. The father or mother may prove that they were never married, or the illegality of their marriage (v); or admitting the marriage, may prove the child to have been born before it (w). But they shall not be adınitted to prove non-access after marriage (x); although the wife may prove her connexion with other men (y).

(c) Henley v. Chesham, 2 Bott, 75. ii. 416. R. v. St. Peter's, in Worcestershire, Burr. S. c. 25. ii. 375. R. v. Bramley, 6 T. R. 330. ii. 417. (1) Goodright v. Moss, Cowp. 591. ii. 405. (1) R. v. Kea, 11 East, 132. ii. 418. (y) R. v. Luffe, 8 East, 193. ii. 419.

3. SETTLEMENT BY PARENTAGE.

The father's last place of settlement, is the settleinent of such of his children as have not been emancipated, or gained a settlement for themselves (z); and therefore proof of the settlement of the father, is prima facie evidence of the place of settlement of his son (u); and this, although before the birth of the son, the father die (0), or be attaint (c).

(2) Cunmer v. Milton, 2 Salk. 528. 6 Mod. 87. ii. 80. Coxwell v. Shil. lingford, Fort. 313. ii. 420. S1. Giles, Reading, v. Eversley, Blackwater, Str. 580. ii.

421. R. v. Ironacton, Burr. S. C. 153. ii. 72. R. v. Salford, Burr. S. C. 516. ii. 422. Hard's case, 2 Salk. 427. ii. 423. Sowton v. Syd. bary, 2 Sess. Ca. 150. ii, 424.

(a) R. v. Stone, 6 T. R. 56. ii. 425.
(6) R. v. Clifton, 19 Vin. Abr. 382. ii. 426.

(C) R. v. St. Mary, in Cardigan, 6 T. R. 116. ii. 427; and see R. v. Had. denham, 15 East, 463. ii. 428.

But if the father's settlement be unknown, or he have none, (as if he be an Irishman, Scotchman, or a foreigner, and have not acquired a settlement), the last place of settlement of the wile, shall be that of the children until emancipated (d); but not if the husband have a settle. ment, and that settlement be known (e).

(d) R. v. St. Botolph's, Burr. S. C. 367. ii. 429. Tynton v. King's Norlun, 2 Bott, 31. ii. 373. R. v. St. Paul's, Shadwell, 2 Sess. Ca. 113. ii. 430. St. Giles's v. St. Margaret's, Fol. 251. ii. 431. R. v. St. Matthew, Bethnal Green, Burr. S. C. 482. ii. 432. See R. v. Cottingham, 7 B. and C.615.ji. 433. R. v. Eliham, 5 East, 1/3. ii. 65.

(e) Berkhamstead v. St. Mary, North Church, 2 Butt, 33. ii. 434.

So, if the husband die, and the widow acquire another setilement in her own right, that settlement is communicated to her children unemancipated (f). But if she marry a second husband, and thereby acquire another setilement, such settlement is not conununicated to her children by her former husband, but they retain the same settlement their mother had at the time of her second marriage ( g).

(f) St. George's v. St. Catherine's, Ld. Raym. 1474. ii. 435. R. v. Woudend, Ld. Raym. 1473. ii. 436. R. v. Barton Turfe, Burr. S. C. 49. ii. 437. R... Ouiion, Burr. S. C. 64. ii. 222. R. v. Long Wittenham, 2 Bott, 38. ii. 438.

(g) Wrangford v. Brandon, Carth. 449. 2 Salk. 482. Burr, S. C. 3. ij. 79. R. v. St. Giles's in the fields, 2 Boit, 31. Burr. S. C. 2. ii. 439. R. v. Saxmundham, 2 Bott, 22. ii. 440.

Children under seven years of age, shall not be removed from their parents, but shall go with them for nurture; and the parish where the children are legally settled, shall relieve them in the parish where the parents are settled (h).

(h) Wrangford v. Brandon, Carth. 449. 2 Salk. 482. Burt. S. C. 3. ii. 79. Skeffreth v. Walford, 2 Sess. Ca. 89. ii. 76. R. v. Bucklebury, IT. R. 164. ii. 158. Darlington v. Hemlington, 2 Bott, 9. Cald. 6. ii. 77. Simpson v. Johnson, 1 Duug. 7. ii. 392. Shermandbury v. Bolney, Carth. 279. 11. 78.

As to emancipation : Whilst a child resides with his parents, whether he be of the age of twenty-one or not, he shall not be deemed to be emancipated (i), unless he be married (k), or have gained a settlement in his own right(1); or even if he live separate from his parents, still he shall not be deemed emancipated, until he have attained the age of twenty-one (m), or have inarried (n), or have gained a settlement in his own right (c), or have contracted some other relation which is inconsistent with the idea of his being in a subordinate situation in his father's family (p). Until seven years of age, a child cannot be emancipated, whether he live with his parents or not; for until then he cannot acquire a settlement (9). So, between the age of seven and twenty-one, although he live separate from his pareits, and support himself by bis labour (r), or be hired out to others by his father, and his father receive his wages (s), or be supported by his relations (t), or by the parish (u), he is not emancipated, unless he be married, or have acquired a settlement in his own right, &c. &c., as above mentioned. So, liy serving as an apprentice tu a certificate-man (v), or under a void indenture (w), a child is not emancipated (2x); but by serving any other person, and thereby gaining a settlement, he is (w). If, however, after the age of twenty-one, the child permanently separate from his parents, he is emancipated (y); or if he be separated from them before 'twenty-one, and continue so until he

(i) See R. v. Sowerby, 2 East, 276. ii. 441. (k) R. v. Overton, 1 East, 526. ii. 442.

(L) R. v. Bleasby, 3 B. and A. 377. ii. 443. R. v. New Forest, 5 T. R. 478. ii. 444.

(TIL) R. v. Lytchet Matraverse, 7 B. and C. 226. ii. 445. R. v. Lawford, 8 B. and C. 271. ii. 446.

(n) St. Michael's, in Norwich, v. St. Matthew's, in Ipswich, 2 Bott, 40. 11. 417. Eastwoodhey v. Westwoodhey, Str. 438. ii. 418. Bugden v. Ampthill, Burr. S. C. 270. ii. 449.

(0) R. v. Cold Ashton, Burr. S. C. 444, ii. 299. R. v. Cullingbourne Ducis, 4 T. R. 199. ii. 450.

(P), Per Ld. Kenyon, R. v. Witton cum Twambrookes, 31. R. 355. ii. 451.

(9) Dumbleton v. Beckford, 2 Salk. 470. ii. 452.
(R. v. Wilmington, 5 B. and A, 525. ii. 453.
(s) R. v. Stretton, 2 Bott, 47. ii. 454.

(C) R. v. Offchurch, 3 T. R. 114. ii. 455. R. v. Tottington Lower End, Cald. 284. ii. 456. R. v. Uckfield, 5 M, and s. 214. ii. 457.

(4) R. V. Broadhembury, 2 Bott, 49. ii. 458. (0) R. v. Huggate, 2 B. and A. 582. ii. 459. R. v. Hardwicke, 11 Eastig 578.'ii. 460.

(2) R. v. Edgworth, 3 T. R. 353. ii. 461. () R. v. Silton, 1 Wils. 184. i1. 462; but see R. v. Halifax, Burr. S. C. 806. ii. 463.

(y) R. v. Roach, 2 Bott, 57. ii. 464. VOL 1.

[ocr errors]

arrive at that age, he is then emancipated (2). So, if a child enlist in the king's service (a), and continue in the service until after he is twenty-one (6), he is emanci. pated. So, if he be drawn in the militia, and continue to serve in it until after he is twenty-one, he is emanci. pated (c); but when a son served in the inilitia with the consent of his father, who was a serjeant in the same regiment, and lived with his father during the time he served, and his father received his pay, it was holden that he was not emancipated id). (z) R. v. Cowhoney borne, 10 East, 88. ii. 465.

(a) R. v. Walpole, St. Peter's, Burr. S. C. 638. ii. 466. R. v. Stanwix, 5 T. R. 670. ii. 467.

(6) R. v. Rotherfield Greys, 1 B. and C. 345. ii. 468.
(c) R. v. Hardwick, 5 B. and A. 176. ii. 469.
(d) R. v. Woburn, 8T. R. 479. ii. 470.

Before emancipation, the child follows the settlement of the parent; after emancipation, he retains the settlement his parent had at the time of the emancipation, until he afterwards acquire a settlement in bis own right (e).

(e) See the authorities above cited.

4. SETTLEMENT BY MARRIAGE,

If a woman marry a man who hath a known settlement, she thereby acquires it as her settlement, whether she had a settlement before or not; and the same, as to any new settlement he may have acquired until his death ; and this, whether she have ever lived with him in his place of settlement or not (f). During the marriage she cannot acquire any settlement in her own right, distinct from his (g"). After his death, she retains his last settlement, until she acquire a new one.

(f) St. Giles v. Eversley, 2 sess. Ca. 116. ii. 421. See Appotens y Punswell, 2 Bott. 80 (nom. Uphuttery v. Dunksweil, Set. and Rem. 8y. I Sess. Ca. 80), ii. 472. contra.

(8) See R. v. Aythorp Rooding, Burr. S. C. 412. ii. 66.

If, however, a wonan marry a man who hath no settle. ment (h), or whose settlement is unknown (i), she still retains her maiden settlement. She cannot, indeed, be removed to it, so as to separate her from her husband, without his consent (k); nor even with his consent, if he be an Irishman or Scotchman(), or born in either of the isles of Man, Jersey or Guernsey, but if removed at all she must be passed with him to his country (2). But if she alone come into and become chargeable to a parish, in which her husband does not reside (m), or if he desert her, and she become chargeable (n), or if he die, and she become chargeable (m), she and her children may then be removed to the place of her inaiden settlement.

(h) See R. v. Eastbourne, 4 East, 103. ii. 473.

(i) R. v. Westerham, 2 Bott, 83. num. Westerham v. Chiddingstone, Fol. 252. R. v. Chiddingstone, Str. 683.) ii. 474. R. v. Ryton, Cald. 39. ii. 475. R. v. Hensingham, Cald. 206. ii. 476. R. v. Harberton, 13 East, 311. ii. 477.

(k) R. v. Eltham, 5 East, 1:3. ii. 65. R. v. Carleton, Burr. S. C. 813. ii. 70.

(1) R. v. Leeds, 4 B. and A. 498. ii. 69.59 Geo. 3. c. 12. s. 33. See Stretford v. Norton, 2 Sess. Ca. 185. Burr. s. C. 122. ii. 478.. Appotens v. Dunswell, 1 Sess. Ca. 80. 2 Bott, 80. Set and Rem. 89. ii. 472; and see R. v. Cottingham, 7 B. and C. 615. ii. 433, and ante, p. II.

(m) See St. Michael's, in Bath v. Nunney, Str. 544. ii. 71. R. v. Tronacton, Burr. S. C. 153. ii. 72. R. v. Higher Walton, Burr. s. C. 162. ii. 73.

(n) R. v. Cottingham, 7 B. and C. 615. ii. 433. Sec R. v. Hinxworth, Cald. 42. ii. 336. R. v. Leigh, Doug. 46. Cald. 59. ii. 333. Dunsfold v. Wilsborough Green, Fol. 249. Gilb. Rep. 97. 2 Bott, 82. ii. 479. R. v. St. Botolph, Bishopsgate, Burr. S. C. 367. ii. 429.

(0) See Appotens v. Dunswell, 1 Sess. Ca. 80. ii. 472. R. v. Ryton, Cald. 39. ii. 475. St. Giles's v. St. Margaret's, 1 Sess. Ca. 104. ii. 431.

In the case of a reinoval of a wife, without her husband, therefore, it will be a sufficient prima facie case, upon appeal, to prove her maiden settlement (p); for that must be deemed to be her settlement, until it be proved that she has acquired another (9).

(p) R. v. Woodsford, Cald. 236. 2 Bott, 17. ii. 862. R. v. Hedsor, Cald. 371. ii. 480. R. v. Ryton, Cald. 39. ii. 475.

(9) R. v. Harberton, 13 East, 311. ii. 477.

If overseers or others, by fraud or contrivance, procure a female pauper of their parish to be married to a pauper of another parish, in order to relieve their parish froin the liability to maintain her: this, although it may subject the persons guilty of this fraud or contrivance to punishment, will not affect the settlement, nor prevent

« PreviousContinue »