Secondly, Of settlement by birth. 2. Of a bastard. Bastard born in a place by collusion. What is not collusion. Bastard born removal is made out. Bastard born where the removal of the mother is suspended. of sessions, but the Court declined hearing Nolan, aud Fynes Clinton, on the other side. 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. It is not less clearly settled, that if a woman come into a place by privity and collusion of the officers where she belongs, and be there delivered of a bastard; such bastard gains no settlement there, notwithstanding its birth. Sett. & Rem. 66; and per Bayley, J., supra. In Masters v. Child, 3 Salk. 66; 2 Bott, 2; and Tewkesbury v. Twining, 2 Bott, 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, 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 delivered, this shall not charge that parish which persuaded her. 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 otherwise; such bastard shall not be settled where so born, but at the mother's settlement. Reg. v. Ickleford, 1 Sess. C. 33; Sett. & Rem. 66; 2 Bott, 9; 1 Nol. P. L. 200. Per Bayley, J., in Rex v. Leicester, supra. 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 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. Bastard born in removing. 4. It has also been determined that if the officers be carrying a woman, 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. & Rem. 66; 2 Bott, 3; 1 Nol. P. L. 290. 5. Rex v. Great Salkeld, 6 M. & S. 408. Order of removal of Lancelot Walker, otherwise Nicholson, from Morland to Great Salkeld, confirmed. Case: The mother of the pauper, Catherine Nicholson, whilst a single woman and pregnant with the pauper, was removed from Great Salkeld to which was quash. Lowther, but the order was confirmed on appeal subject to a case that was quashed by the Court of K. B. Whilst the appeal was depending, and A bastard born pending an appeal against the order of removal of the mother, ed, is settled in the removing parish. before the decision of the Court, Catherine was delivered of the pauper in Lowther, born a bastard.-Lord Ellenborough. The birth settlement of the pauper, though in fact born at Lowther, was in Great Salkeld, for there he 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 born, is to be considered the place of its birth. Order confirmed. Secondly, Of settlement by birth. 2. Of a bastard. a parish to which his mother had been removed, 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 pregnant, was removed by an order from Playford to Stutton. Before the sessions she was delivered, at Stutton, of the pauper, a bastard. At the sessions Stutton appealed, and the order was quashed. At the time of the bastard's birth the mother belonged to Martlesham.—Bayley, J. It is quite 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 Aldridge and child, from Painswick to St. Andrew Holborn, confirmed. 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 order of 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 which the mother was sent to the house of correction, this being the place where 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. 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 industry, of any hundred, or other district, incorporated by act of parliament for the relief and employment of the poor, shall be deemed to belong to the 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 which order was quashed, cannot mother's settlement. follow his So also if the order is quashed for misdirection. Bastard born in the house of cor rection. In prison. In the house of incorporated disindustry of an trict. Secondly, Of settlement by birth. friendly societies. Every child which shall be born a bastard in any parish or place, the mother whereof shall at the time of the birth of such child be a member of any such benefit society, and be residing in such parish or place under the authority of that act; such child shall have the same settlement which the mother had at the birth of such child; any usage or under the act for custom to the contrary notwithstanding. Vide Vol. II. title, Friendly Societies. 2. Of a bastard. Bastard born establishing friendly societies If she is residing with her father, as a member of her family, and he has a certificate under this act; she is residing Rex v. Idle, 2 B. & A. 149. Order of removal of M. W. and her bastard child from Idle to Rawden: confirmed by the sessions as to the mother, but discharged as to the child. Case: For several years prior to the 4th October, 1817, J. W., the pauper's father, was an efficient member of a friendly society, established in pursuance of the 33 Geo. III., “ An act for the encouragement and relief of friendly societies.” On the 4th October, 1817, a under the autho- certificate as to that fact was duly made and verified. [The case then set rity of the act. out the certificate, which was regular.] This certificate and the verification were, on the 7th October, 1817, delivered to the overseers of Idle. The bastard child was born in that township on the 19th November, 1817, whilst J. W. and his family (of which the pauper was then a member) were residing there under the supposed authority of the certificate and the acts relating to friendly societies. After argument, Abbott, C. J., said, I am of opinion that the original order of the two magistrates was good, and that the sessions were mistaken in their judgment. It has been argued that the friendly society act was repealed by the 35 Geo. III. c. 101, which provides that no person shall be removable from any parish until actually chargeable, and thus, it is said, rendered wholly unnecessary the former protection by certificate under the friendly society act. But I think that is not so; for it may be very convenient, notwithstanding the effect of the 35 Geo. III. to keep the provisions of the 33 Geo. III. in force. In many cases, a labourer who might wish to come into a parish might not be able to obtain employment there, for fear that, by so doing, he might bring burthens upon the parish. But if he came with a certificate from a friendly society, that fear would be removed. It would, therefore, be depriving the members of such societies of a material benefit, if we were to hold the 35 Geo. III. to be a virtual repeal of the provisions of the 33 Geo. III. Then the question arises, who are the persons protected by the latter act? The object of the act being to facilitate the finding of employment, it should receive a liberal construction. I think therefore that the certificate granted to the head of the family protected not only him, but also all the members of the family, and placed them in the same situation in which he stood. If so, then they would not be removable till they became actually chargeable. According to Rex v. Great Yarmouth, (8 T. R. 68,) this woman, under the circumstances stated to us, was removable; but although that was so, still it may be very questionable, whether, in this particular case, the parish officers were bound to remove the mother? There is an obvious distinction between the effect of a certificate under the 33 Geo. III: and that of one under 8 & 9. W. III. For the former of these two statutes enacts," that every child born a bastard in a parish during the mother's residence therein, under the authority of that act, shall have the same settlement as the mother." The attention, therefore, of the parish officers, would naturally not be called to the situation of a woman residing under a certificate granted under 33 Geo. III.; and I think, therefore, that they were justified in not removing in this case. No inconvenience can arise to the other parish from this; for if the mother had been actually removed, the child would have been born in their parish, and so would have been settled there. They, therefore, are placed in no worse situation by our holding that the child shall follow the mother's settlement, though she was not removed. I think, therefore, that the parish officers were not bound in this case to remove the mother, and that the child being born in Idle, whilst the mother was residing there under the authority of the 33 Geo. III. c. 54, followed her settlement in Rawden, and that the order of sessions was therefore wrong. 9. By 13 Geo. III. c. 82, s. 5, a bastard born in a lying-in hospital, shall follow the mother's settlement. It may be observed, that no such hospital can be established without licence from the justices in sessions. See 54 Geo. III. c. 170, s. 2, ante, p. 275. Rex v. Manchester, 4 B. & A. 504. The wife of J. C. and her two children, E. aged eight years, and J. aged six weeks, were removed from Manchester to St. Andrews, Canterbury. Upon appeal, the order was confirmed as to M. and E., her daughter, and quashed as far as it respected J., subject, &c., as to the settlement of J. Case: In the Manchester workhouse there is a room, for which a licence has been obtained, for the reception of lying-in women. This room has been duly licensed pursuant to the 13 Geo. III. c. 82. The room is appropriated by the officers of the town of Manchester to the reception of women resident within the township, but settled elsewhere, and pregnant with children likely to be born bastards, and also to the reception of pregnant women chargeable to the township, and settled in Manchester. And in some few instances, pregnant women have been received from other districts, upon a compensation paid by the overseers of the place in which such pregnant women were resident. Women having settlements elsewhere than in Manchester, if too far advanced to be safely removed to their settlements, are placed by the town's officers in this room for the purpose of being delivered. The expences incurred in respect of the room, are defrayed in common with the general expences of the work house, out of the parish rates. M. C. being settled in St. Andrews, Canterbury, but resident in Manchester, and pregnant with a child likely to be born a bastard, was placed by the officers of Manchester in this room, and was there delivered of the pauper J. who was born a bastard. The question was, whether this room is a hospital, or place within the act referred to, and whether, by force of that act, the settlement of J. is in St. Andrews, or whether it is in Manchester.-After hearing counsel, Abbott, C. J., said, "It seems to me, that in this case we cannot consider this a hospital or place within the act. By the 10th section, the person having the management of it is directed, before the admission of any pregnant woman into such hospital, to take her before a justice to be examined whether she be married or single; and other duties are cast upon them for that purpose. By the 4th section, an inscription is to be placed over the door or public entrance of every such hospital, stating, that it is licensed for the public reception of pregnant women, and supported by charitable contributions. In the present case, it is only a room set apart for this purpose in the workhouse, the expences of which are defrayed out of the poor's rate. I think, therefore, that this cannot be said to be used for the public reception of pregnant women, nor supported by charitable contributions. Manchester, therefore, is not protected by the 5th section; and the sessions have come to a right conclusion." Order of sessions confirmed. 10. By 9 Geo. IV. c. 40, s. 49, no bastard child which shall be born of any insane person, in any such county lunatic asylum, shall thereby gain a settlement in the parish in which such asylum shall be situated; but that the place of the legal settlement of any such child so born as aforesaid, shall be in the parish where the mother of such child was last legally settled. See tit. Lunatic, Vol. III. The 51 Geo. III. c. 79, was repealed by the 9 Geo. IV. c. 40. The latter act applies only to county asylums; the former act was general. 11. By 17 Geo. II. c. 5, s. 25. If a vagrant woman were delivered of a Vagrant's child. bastard, the overseers might take her before a justice, and then the settlement of the child would follow that of the mother. By 3 Geo. IV. c. 40, s. 41, (24th of June, 1822), the bastard child of any vagrant woman followed her mother's settlement. But these acts are repealed by the 5 Geo. IV. c. 83, (21st of June, 1824), and no similar provision re-enacted. As to legitimate children of vagrants, see Coxwell v. Shellingford, post. 2. How Settlement of a Bastard affected by a Certificate. The nature and general effect of certificates, given by parishes to enable their poor to reside in other parishes where they can best earn a subsistence, is explained under the head, “ Acknowledgment of Settlement by Certifi Secondly, of settlement by birth. 2. Of a bastard. Bastard born is settled where horn. cate," (post, eleventh head.) How far the settlement of a bastard in the place where he is actually born, may be affected by the mother being thus certificated at the time, will be seen in the following cases : The general rule is, that bastards born in a place in which the mother resides under a certificate, are settled where born. But a bastard of which the mother is pregnant at the time the certificate is given, may be included in the certificate, but is not comprehended under the term "family." Windsor v. White Waltham, 1 Stra. 186; 2 Bott, 577. John P. being under certificate, legally settled in White Waltham, where he had lived two years with a woman his reputed wife, went with a certificate, owning them as man and wife, from thence to Windsor, where they had six children. The man died, and the woman swearing they had never been married, the justices adjudged the children to be bastards, and settled in Windsor where they were born. And by the Court: There is no doubt but the bastard of a certificate person is settled in the place of his birth, for he is not such an issue as will follow the settlement of his father or mother, neither is such bastard his or her child within the intention of the statute, so as to be sent back with the parent. A bastard is not included in the the certificate acts; therefore, if a certificated woman be de livered of a bastard, it is settled where born, and not in the certificating parish. But in the above case the decision as to the settlement of the children turned chiefly upon the certificate's being conclusive, in which the man and woman were acknowledged and spoken of as husband and wife: the Court therefore held, that they were not afterwards to be admitted to dispute the validity of such marriage, and adjudged the children to be settled in the parish granting the certificate. In Hilton v. Lidlinch, 2 Stra. 1168; Burr. S. C. 187; 2 Bott, 13; the word "family" in question came under consideration again, upon this state of facts:-A single woman went into Lidlinch, with a certificate from Hilton, where she lived a year, and then had a bastard child. The only question was, whether the child should be settled in the parish where it was born, or in the parish which gave the certificate? By the Court:-The certificate must be taken to be good, and all fraud to be laid out of this case, it being a year that she dwelt in the parish before she was delivered of the child; and wherever this Court, in determining a settlement, adjudges upon the point of fraud, that fraud must be expressly stated; for as fraud is odious, it is never to be presumed. The cases hitherto adjudged as to this point, have either depended upon some point of fraud or an illegal removal. So where the child is born in a gaol, he shall be settled in the parish where his mother is: for she shall be construed to be in custody of the law, and in all other respects a parishioner; see Ellsing v. County Gaol of Hereford, ante, p. 281. But the present case stands entirely on 8 & 9 W., which, for the encouragement of labour and industry, gave power of removing persons by certificate, which certificate obliges the parish to whom given, to receive and continue them in that parish till they become actually chargeable; and then such person is to be removed, together with his or her family, and in another place, with his or her children, to the place from whence the certificate was brought. The question, then, is, whether the bastard is included under the words family or children? And we take it he is not; for the law takes no notice of bastard children; they are filii nullius, filii populi, and are primâ facie settled where born. Although the certidcate undertake to provide for a woman and her child, she being then pregnant of a bastard, the child is settled where born. Rex. v. Wyke, Burr. S. C. 264 ; 2 Bott, 14; 1 Nol. P. L. 323. John Catton, otherwise Speight, a bastard, was removed from Wyke to Hipperholm, the place of his birth. Order quashed. Case: S. Catton, mother of the pauper, came on the 25th of March by certificate from Shelfe to Hipperholm, being then pregnant with the pauper; and was in April following, delivered of him at Hipperholm. The sessions being of opinion that the pauper, by reason of the certificate, did not gain a settlement in Hipperholm, discharged the order. The certificate undertook that Shelfe should provide for her and her child whenever they should become chargeable. Against this order of sessions was cited, Hilton v. Lidlinch, (supra.) On the other side it was insisted, that this case was clearly distinguishable from Hilton v. Lidlinch. For here the woman is stated to be then pregnant with a bastard child, and the certificate expressly undertakes to provide for her and her child; so that Shelfe plainly had this very child in contemplation, no other child being |