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First, Of settlements in
In the case of Rex v. Ashton-under-Lyne, 4 M. f. S. 357, the wife had taken the premises, and occupied part of them with her family, long before the husband deserted, and the argument proceeded chiefly upon that ground, leaving it to be inferred, that if the husband had himself entered into the contract, and done all the other acts necessary to establish a settlement, the circumstance of his being a deserter at the time would not have defeated it. It has been decided, that a soldier may, during his service in the army, gain a settlement by renting a tenement, although he could not by hiring and service. Rex v. Brightelmstone, į B. f A. 270; Rex v. Beaulieu, post, Hiring and Service. It is no objection that his estate was defeasible. See Rex v. Haddenham, 15 East, 460.
(Secondly)-Of Settlement by Birth.
1. In General.
Secondly, Of settlement by
1. Of a Legitimate Child. Legitimate children take the settlement of their father, or if he has no 1, of a legitimate settlement, they are entitled to the maiden settlement of their mother; and child.
The settlement of it is only when both these sources fail, that their right accrues to a settle
a legitimate child ment in the place in which they were born. But until the settlement of the is that of the father or of the mother has been ascertained, the settlement of a legitimate that of the
father, or, if any, child, like that of a bastard, is primâ facie in the parish where the birth took mother, but until place; and if that cannot be ascertained, then the child is not removable one of these is from the place where it was found, and must be relieved there as a casual place of birth is, pauper.
prima facie, that A child was removed to the place of its birth, neither father nor mother of settlement. having a settlement; and on appeal the sessions were of opinion, that birth gains no settlement, but only in case of bastardy.--Per Curiam (absente Holt, C. J.) Birth makes a good settlement, and the labour lies on them where it was born, to find another. The order made on appeal was quashed. Spitalfields and St. Andrews, Holborn, Fort. 307.
Cripplegate v. St. Saviour's, 2 Bott, 27; 1 Nol. P. L. 278. A child of three years of age was removed from one of these parishes to the other; and it appeared in the order, that they removed him there, because he was born there, not having any other settlement. By the Court. The father's settlement is the settlement of the children, when it can be found out; otherwise the birth of the child primâ facie is the settlement of the child, until there is another settlement found out.
It will be seen hereafter, that if the father has no settlement, but the mother has, the child shall be removed to the mother's settlement, and not to the place of its own birth. See post, title, Settlement by Parentage.
The place of birth is primâ facie the place of settlement; Rex v. Heaton and Norris, 6 T. R. 653; even if the pauper is a widow or a married woman. See Rex v. Ryton, post, 315. But per Bayley, J. “I cannot concur in the argument, that the mere fact of a pauper being first found in a particular parish, is presumptive evidence of his having been born there; and if the cases that have been referred to go that length, I, for one, must be allowed to doubt their authority.” Rex v. Trowbridge, 1 M. & R. 12; 7 B. $ C. 252. And in many cases, proof of the place of birth will afford but slight evidence of settlement, though of course it may be acted upon if no proof tending to fix the settlement elsewhere be offered. See Rex v. Wakefield, 5 East, 335.
In Clarely f. Burton, 2 Bulst. 351, it was holden by the judges, that
child as a vagrant, is its set
another be found.
Child born in
Secondly, Of if the mother of a child born in one parish die in another parish, while passsettlement by ing to a third, such child shall be settled where it was born, and not in the birth. parish where it was lest destitute by the death of the mother.
Whitechapel v. Stepney, Carth. 433; 2 Bott, 12; 1 Nol. P. L. 285, 288. 1. Of a legitimate
It was holden that a legitimate child, where its parent is a vagabond, gains a settlement by birth; but where the settlement of the parent of a legitimate
child is known, such child must follow the settlement of the parent. The place of birth A travelling woman, having a nurse child, was apprehended for felony, of a legitimate
and sent to gaol, and was hanged; this child to sent to the place of
its birth, if it can be known, otherwise it must be sent to the town where the tlement, until mother was apprehended, because that town ought not to have sent the
child to gaol, being no malefactor. Dalt, c. 73, p. 168.
And where a child is first known to be, that parish must provide for it place of abode.
till they find another. Comb. 364, 372.
Rex v. Great Clacton, 3 B. g. A. 410. J.W. removed from St. Margaret's England of hirish in Ipswich, to Great Clacton in Essex. Order confirmed, subject to the fol
lowing case: The pauper's late father, was born in Ireland, and was married in that country in 1807, to A. C., who was also born there. The pauper was born in 1810, in Great Clacton, and the father died in St. Margaret in 1817, without having gained a settlement in England. The mother subsequently married H. F., settled in St. Margaret, where she resided, and the pauper had become chargeable. Before the last marriage she had acquired no settlement in England. Storks contended, that under 59 Geo. III. c. 12, s. 33, the pauper ought to have been removed by a pass to Ireland.
But K. B. held that the removal was properly made. Without determining what might have been the case if the mother had also been removable at the time, it is clear here that she having acquired a settlement by marriage, the pauper's case is to be considered as if he had no parent alive. Then, if so, the clause in question only applies to persons who are themselves born in Ireland, which he was not. Order of sessions confirmed. See tit. Vagrants, Vol. V.
The same doctrine was held in the following case, where both parents were Irish, and living, and their grown up daughter, residing with them, had become chargeable:
Rex v. The Inh. of Whitehaven, 5 B. f. A.720; 1 D. & R. 384. Upon an pated daughter of Irish parents may
appeal by the inhabitants of the township of Workington, in the county of Cumberland, against an order of removal of Mary M'Cormick from the
township of Whitehaven, in the said county, to the township of Workington ; parents have not the sessions quashed the order, subject to the following case: The pauper, become charge. Mary M'Cormick, an unmarried woman with child, and thereby chargeable and she has. able, but who had not applied for, or received, parochial relief, was removed
from Whitehaven to Workington, as the place of her birth settlement. The pauper, at the time of her removal, was above the age of 21, had gained no settlement for herself, was unemancipated, and living with her father and mother, as part of their family. The father and mother were both Irish, and had gained no settlement in England. The father had not applied for, or received, any relief from the removing township, for himself or any part of his family. The father was not examined by the removing magistrates. The question for the opinion of the Court was whether, under the provisions of the 59 Geo. III. c. 12, and the above circumstances, the pauper was properly removed to the place of her birth settlement. F. Pollock, in support of the order of sessions, contended, that the whole family should have been removed by a pass to Ireland, under 59 Geo. III. c. 12, s. 33. That here the pauper became chargeable, within the meaning of the statute, by his family, for his daughter being an unmarried woman, and pregnant, was, according to the 35 Geo. III. c. 101, s. 6, actually chargeable to the parish where she was residing.
By the Court. We are of opinion that the chargeability contemplated by the legislature, in 59 Geo. III. c. 12, s. 33, was the actual asking for parish relief, and not the constructive chargeability created by 35 Geo. III. c. 101, s. 6. The order of sessions is wrong, and must be quashed. Order of sessions quashed.
be removed to her birth settle
By 13 Geo II. c 29, for confirming and enlarging the powers conferred Secondly, Of by charter upon the governors and guardians of the hospital for the mainte- settlement by nance and education of exposed and deserted young children, it is provided
birth. by s. 7, that no child, nurse, or servant, received or employed in such hos
1. Of a legitimate pital shall, by virtue thereof, gain any settlement in the parish where such child. hospital shall be situate. The settlement of foundlings, therefore, is left to be foundlings determined by the same rule as prevails in all other cases wherein those maintained in particulars as to their birth and parentage can be ascertained, which deter- hospitals. mine the settlement of the child in such other cases. According, however, to the popular notion of a foundling, these facts are not made known, nor are they easy to be discovered. But it is to be inferred that the institution to which the above statute relates, is not limited to the reception of children whose destitution is of that aggravated description. It involves no absurdity, therefore, to say that foundlings, if they are legitimate children, follow their father's settlement, if it is known; if not, they take their mother's; and if neither of these be known, or they are bastards, their settlement will be in the place of their birth. But if that also cannot be discovered, they must be provided for in the place in which they may happen to be, as casual poor. The effect of an admission upon this charitable establishment, is only to take those children from the parish where they must otherwise have been supported, and to give them the benefit of the provisions of the hospital. See 54 Geo. III. c. 170, s. 2 & 3, ante, p. 275.
2. Of a Bastard.
1. By Birth of a Bastard in General. An illegitimate child cannot derive a settlement from either of its parents, 2. Of a bastard. and generally speaking it is settled in the place where it was born. Rex v. St. Nicholas, Leicester, 2 B. &. C. 889; 4 D. & R. 462; infra.
A settlement by birth seems to be founded on the 13 & 14 Car. II. c. 12; The place of by which justices are directed to remove any poor person come to inhabit, and likely to become chargeable to the parish where he or she was last legally settled, either as a native, householder, &c., for the space of forty days at the least, and therefore it would seem that a residence of forty days is essential to the acquisition of a birth settlement. But there is no decision to this effect, and the tacit convention of parishes not to insist upon it, would most probably induce the Court of K. B. to overrule such an objection if it were now attempted to be set up. See 1 Nol. P. L. 288; n. (1.)
Generally speaking, an illegitimate child is settled in the place where it is bom. Rex. v. St. Nicholas, Leicester, 2 B. & C. 889; 4 D. : R. 462; infra; and this is so whether the parent be a housekeeper or a lodger merely. Rex.v. Spitalfields, 1 Lord Raym. 567. In Whitechapel v. Stepney, Carthew, 433; it is said that a bastard gains a settlement in its place of birth ex necessitate, for being nullius filius, it cannot otherwise be provided for, except a reputed father can be found. But this proposition is laid down rather too largely, because if the birth happen in an extra-parochial place, which does not maintain its poor, no settlement is gained, and such child can only be relieved as casual poor, till it acquires a settlement in some other way, as appears by :
Rex. v. St. Nicholas, Leicester, 2 B. & C. 889; 4 D. f, R. 462; 2 D. f. A bastard child, R. Mag. C. 253. Caroline Littlewood was removed from All Saints, in
parochial place, Derby, to Saint Nicholas, in Leicester. Order confirmed. Case : The which is not a pauper was the illegitimate child of Elizabeth Littlewood, deceased, and vill, has no setwas born in May, 1822, in an extra-parochial place, called the Black Friars, in Leicester, which is not a vill
, and for which no overseers have ever been appointed. She was shortly afterwards taken by her mother to All Saints, Derby, where she remained until the death of her mother, and up to the time of this order of removal. The mother had, six years previously to the birth of the pauper, gained a settlement in the parish of Saint Nicholas, and was legally settled in that parish at the time of the birth of the child and of her own death. Clarke was heard in support of the order VOL. IV.
born in an extra.
2. Of a bastard.
Secondly, of of sessions, but the Court declined hearing Nolan, and Fynes Clinton, on settlement by the other side. birth.
Per Bayley, J. “The argument in support of the order of sessions is founded upon the assumption, that every person is by law entitled to a settlement in some place; but that is by no means the case, for foreigners have not any settlement in this country. A settlement attaches to those persons only, concerning whom those circumstances may be affirmed, which acts of parliament say shall give a settlement. Generally speaking, an illegitimate child is settled in the parish where it is born. There are some exceptions to this general rule, noticed in the treatises on the poor laws. In most of the excepted cases the mother, at the time of the birth, is in law supposed to be in the place of her settlement, where she ought to be: as, where a woman with child is removed out of one parish into another, through the fraud or collusion of its officers, or where the child is born pending an order of removal. In one of these cases, the child, when born, is settled in the parish from which the mother has been fraudulently removed; in the other, in the parish to which she is ordered to be removed. In this case the child was born in an extra-parochial place. It therefore has not any settlement by birth, and being a bastard, it can derive none from its parent. In such cases, however, it is entitled to remain with its mother as long as the purposes of nurture require it, and it will afterwards be entitled to relief as casual poor, although it has not any settlement. We are all of opinion
that the order of sessions must be quashed.” Order of sessions quashed. Bastard born in a It is not less clearly settled, that if a woman come into a place by privity place by collu
and collusion of the officers where she belongs, and be there delivered of a bastard; such bastard gains no settlement there, notwithstanding its birth. Selt. g. Rem. 66; and per Bayley, J., supra.
In Masters v. Child, 3 Salk. 66; 2 Bótt, 2; and Tewkesbury v. Twining, 2 Boll, 1; it was ruled, that if a woman big with child of a bastard, and settled in one parish is persuaded to go into another, and there be delivered,
this fraud will make the parish chargeable where the mother was settled, lusion.
though the child were not born there: but if a woman with child of a bastard, come accidentally into one parish, and is persuaded by some of the parishioners to go into another parish, which she doth, and there be deli
vered, this shall not charge that parish which persuaded her. Bastard born 2. Also, if a bastard be born under an order of removal, and before the after the order of mother can be sent to her place of settlement, being hindered by water or reinoval is made
otherwise; such bastard shall not be settled where so born, but at the mother's settlement. Reg. v. Ickleford, 1 Sess. C. 33; Sett. f Rem. 66;
2 Bott, 9; 1 Nol. P. L. 200. Per Bayley, J., in Rex v. Leicester, supra. Bastard born 3. By 35 Geo. III. c. 101, the removal of persons during sickness may
be suspended; and by s. 6, if during such suspension any unmarried woman
shall be delivered of a bastard child, every such bastard shall be deemed pended. and taken to be settled in the parish, township, or place, in which was the
legal settlement of such mother, at the time of her delivery. Provided that all acts heretofore made, touching bastard children, or concerning the mothers or reputed fathers of such children, shall remain in full force, as well in cases where by this act the settlement of such child is directed to be the same as that of the mother, as where the settlement remains as it did before the passing of this act.
4. It has also been determined that if the officers be carrying a woman, removing by virtue of an order of removal, to another parish, and she be delivered on
the way thither in transitu, the bastard shall go with the mother where she is going by virtue of the order, notwithstanding the birth. Jane Gray's case. Sett. J. Rem. 66; 2 Bott, 3; 1 Nol. P. L. 290.
5. Rex v. Great Salkeld, 6 M. f $. 408. Order of removal of Lancelot pending an ap
Walker, otherwise Nicholson, from Morland to Great Salkeld, confirmed. peal against the order of removal Case: The mother of the pauper, Catherine Nicholson, whilst a single of the mother,
woman and pregnant with the pauper, was removed from Great Salkeld to which was quish Lowther, but the order was confirmed 'on appeal subject to a case that was the removing quashed by the Court of K. B. Whilst the appeal was depending, and parish.
What is not col.
where the removal of the mother is sus.
Bastard born in
A bastard born
2. Of a bastard.
before the decision of the Court, Catherine was delivered of the pauper in Secondly, Of Lowther, born a bastard.—Lord Ellenborough. The birth settlement of the
settlement by pauper, though in fact born at Lowther, was in Great Salkeld, for there he
birth. was in judgment of law born, because the order of removal being granted, the mother's right to be in Lowther was void ab initio - Abbott, J. An illegitimate child is, as it cannot derive a settlement from its parents, settled where born; but when the mother is improperly removed, the law says that the parish from whence the removal was made, and where but for this, the child would have been bom, is to be considered the place of its birth. Order confirmed.
Rex v. Martlesham, 10 B. & C. 77. Order of removal of Athrol from Play- A pauper born in ford to Martlesham confirmed. Case: Sarah Athrol, single woman, being a parish to which pregnant, was removed by an order from Playford to Stutton. Before the been removed, sessions she was delivered, at Stutton, of the pauper, a bastard. At the which order was sessions Stutton appealed, and the order was quashed. At the time of the mashed, cannot bastard's birth the mother belonged to Martlesham.—Bayley, J. It is quite mother's settle. clear that a bastard cannot gain a settlement by parentage: the pauper, therefore, was not settled in Martlesham, and the order of sessions must be quashed.
Rex v. St. Andrew Holborn, 6 M. & S. 411. Order of removal of Mary So also if the Aldridge and child, from Painsuick to St. Andrew Holborn, confirmed. order is quashed
for misdirection. Case : The divisions of St. Andrew Holborn, Saffron Hill, Middlesex, and St. Andrew Holborn, London, although divisions of the same parish, are separate as far as the maintenance of the poor is concerned. Pending an appeal upon an order removing the pauper as a single woman with child from Painswick to St. Andrew Holborn, London, she was delivered of a child in that district. The judgment of appeal was against Painswick, from misdirection of the order of removal. Another, the present order, was then obtained to St. Andrew Holborn, Saffron Hill. It was urged that the child did not belong to Painswick, because the order was quashed for misdirection to the wrong district, and that it was the same as if the child had been born during the time an orderof removal was suspended, and by 35 Geo. III. c. 101, the child would follow the settlement of the mother.- Per Curiam. The statute has no regard to orders of removal improperly made, so as to give them a kind of floating existence until the blunder is cured by a fresh order. The order in question being to a wrong district, is the same as if it had been directed to the wrong parish. Order quashed as to the child.
The same principle had previously been acted upon in Much Waltham v. Peram, 2 Salk. 474, and also in Westbury v. Coston, 2 Salk, 532; 2 Bott, 7; 1 Salk. 121; in which it was held, that if a woman, pregnant, be removed by an order, and she be delivered, and there be an appeal, and the order be reversed, the child must be sent back; and Holt, C. J., said, though there be no fraud in this case, yet here is a wrongful removal, and the reversal makes all void ab initio : fraud, or not fraud, is not material in this case ; but the settlement of the child depends upon the removal; for if that was wrong, they shall not ease themselves by it.
6. A child born in the house of correction shall be sent to the parish from Bastard born in which the mother was sent to the house of correction, this being the place the house of corwhere she was last settled. Suckley v. Whitborn, 2 Bulst. 358.
And in Elsing and the county gaol of Hereford, 1 Sess. Ca. 94; 1 Nol. In prison. P. L. 290. A bastard was born in the county gaol: Resolved, that the settlement was with the mother. See 54 Geo. III. c. 170, s. 2, (ante, 275.)
7. By 20 Geo. III. c. 36. All bastard children born in the house of in the house of industry, of any hundred, or other district, incorporated by act of parliament indusporadcard for the relief and employment of the poor, shall be deemed to belong to the trict. parish or place where the mother of such bastard child was legally settled.
8. Although the 10 Geo. IV. c. 56, for consolidating the laws relating to friendly societies, repeals the following enactment, and makes no similar provision, yet as cases may arise upon the law as it stood prior to the repeal, it has been thought best to retain it. By 33 Geo. III. c. 54, s. 25, for the encouragement and relief of